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THE  EXEMPTION  FROM  TAXATION  OF 

THE  REAL  ESTATE  OF  COLLEGES 

AND  OTHER  CHARITIES 


PRESIDENT  AND  FELLOWS  OF 
HARVARD  COLLEGE 

vs. 
ASSESSORS  OF  CAMBRIDGE 


ON  February  24,  1897,  the  Full  Bench  of  the  Su- 
preme  Judicial  Court  of  Massachusetts  rendered 
its  decision  in  the  case  of  Williams  College  v.  Assessors 
of  Williamstown,  which  is  reported  in  Vol.  167  Mass. 
Reports,  page  505,  wherein  the  Court  held  that  certain 
lots  of  land,  with  the  dwelling-houses  thereon,  owned  by 
Williams  College  and  occupied  by  its  professors  and 
other  officers,  were  not  exempted  from  taxation  under 
the  laws  of  this  Commonwealth. 

It  was  because  of  this  decision  that  the  City  of  Cam- 
bridge assessed  a  tax  for  the  year  1897  upon  certain 
houses  and  lots  belonging  to  Harvard  College  and  occu- 
pied by  its  president,  professors,  and  students,  ivhich 
had  never  been  taxed  before,  but  had  always  been  treated 
by  the  College  and  the  City  of  Cambridge  as  exempt 
from  taxation  under  the  laws  of  this  Commonwealth. 
The  College  paid  the  taxes  on  this  property  under 


89642 


2        REPORT  OF  THE  SUPERIOR  COURT 

protest,  and  made  application  to  tlie  assessors  for  abate- 
ment thereof,  and,  upon  their  refusal  to  abate,  appealed 
to  the  Superior  Court.  The  case  was  submitted  to  Mr. 
Justice  Bell  of  the  Superior  Court  upon  an  agreed 
statement  of  facts  which  is  set  forth  in  his  report. 
Judge  Bell  decided  that  the  several  properties  were 
exempt  from  taxation,  and  by  consent  of  the  parties 
reported  the  case  to  the  Supreme  Judicial  Court  for  its 
decision.     The  Judge's  report  is  as  follows  :  — 

REPORT 

This  action  is  a  petition  for  abatement  of  certain  taxes 
assessed  upon  certain  properties  of  the  petitioners  as 
hereinafter  appears. 

The  petition  may  be  referred  to. 

It  is  not  claimed  in  this  case  that  the  taxes  are  exces- 
sive, but  the  petitioners  claimed  that  the  properties  are 
exempt  from  taxation  under  the  provisions  of  clause 
three,  section  five,  chapter  eleven  of  the  Public  Statutes, 
as  amended  by  Statutes  of  eighteen  hundred  and  eighty- 
nine,  chapter  four  hundred  and  sixty-five. 

The  case  was  heard  before  me  without  a  jury  upon  the 
following  agreed  statement  of  facts,  and  no  other  evi- 
dence was  submitted :  — 

Agkeed  Facts 

The  following  are  agreed  to  be  the  facts  in  this  case :  — 
The  appellants  are  a  corporation  established  under  the 
laws  of  this  Commonwealth,  and  a  literary,  benevolent, 
charitable,  and  scientific  institution  within  the  meaning  of 
the  provisions  of  Public  Statutes,  chapter  11,  section  5, 
clause  3,  as  amended  by  chapter  465  of  the  Acts  of  1889. 
On  the  first  day  of  May,  1897,  the  appellants  were  the 
owners  of  certain  property  situated  in  said  Cambridge, 
and  were  liable  to  taxation  therefor ;  they  filed  with  the 


REPORT  OF  THE  SUPERIOR  COURT        3 

assessors  of  said  Cambridge  within  the  time  specified  by 
them  a  full  and  accurate  list  in  due  form  of  all  their 
estate  which  they  considered  liable  to  taxation  in  Cam- 
bridge ;  they  were  also  on  said  first  day  of  May,  1897,  the 
owners  of  certain  other  property,  viz.:  real  estate,  situ- 
ated in  Cambridge,  which  they  contend  is  exempted  from 
taxation  under  the  provisions  of  Public  Statutes,  chapter 
11,  section  5,  clause  3,  as  amended  by  chapter  465  of 
the  Acts  of  1889,  because  said  property,  they  contend,  is 
occupied  by  the  appellants  or  their  officers  for  the  pur- 
poses for  which  they  were  incorporated ;  that  the  appel- 
lants also  filed  with  said  assessors  within  the  required 
time  a  true  list  of  all  real  and  personal  estate  held  by 
them  for  literary,  benevolent,  charitable,  and  scientific 
purposes,  together  with  a  statement  of  the  amount  of  all 
receipts  and  expenditures  for  said  purposes  during  the 
year  next  preceding  said  first  day  of  May.  The  real 
estate,  which  the  appellants  now  contend  is  exempted 
from  taxation  as  aforesaid,  is  briefly  described  as  fol- 
lows :  — 

No.  17  Quincy  Street, 

No.  17  Kirkland  Street, 

No.  11  Quincy  Street, 

No.  16  Quincy  Street, 

No.  25  Quincy  Street, 

No.  37  Quincy  Street, 

No.  38  Quincy  Street, 

No.  11  Frisbie  Place. 

The  assessors  of  Cambridge  assessed  a  tax  for  the  year 
1897  upon  this  real  estate  amounting  to  $2817.50,  and  a 
tax  bill  demanding  payment  of  the  same,  and  dafed  Sep- 
tember 1,  1897,  was  received  by  the  appellants,  who 
paid  said  tax  under  written  protest  on  October  7, 1897. 
Within  six  months  after  the  date  of  said  tax  bill  the 
appellants  applied  to  the  assessors  for  an  abatement  of 
said  tax. 


4        REPORT  OF  THE  SUPERIOR  COURT 

On  January  21,  1898,  the  assessors  in  writing  notified 
the  appellants  that  they  refused  to  abate  said  tax  or  any 
part  of  it. 

On  February  12,  1898,  the  appellants  gave  notice 
that  they  appealed  from  said  decision,  and  on  March  7, 
1898,  which  was  the  first  return  day  occurring  after 
thirty  days  from  the  date  of  the  assessors'  said  notice,  the 
appellants  entered  their  appeal  in  this  court. 

The  several  houses  and  lots  of  land  in  question  in  this 
case,  with  the  specific  assessments  on  each  in  the  year 
1897,  and  the  mode  of  its  occupation,  are  as  follows:  — 

1.  17  Quincy  Street, 

32,000  feet  of  land  assessed  at  $19,000 
House  assessed  at    16,000 


,000   Tax,  8612.50 

The  land  upon  which  stands  house  No.  17  Quincy 
Street,  as  well  as  houses  Nos.  11,  25,  37,  on  said  street, 
hereinafter  to  be  mentioned,  was  conveyed  to  the  Presi- 
dent and  Fellows  of  Harvard  College  in  1835. 

This  land  was  not  a  part  of  the  original  college  yard, 
but  was  made  a  part  thereof  after  the  purchase  aforesaid 
by  removing  the  fences  and  monuments  which  had 
hitherto  separated  the  same,  thus  making  the  said  land 
and  the  college  yard  one  large  field,  upon  which  stood 
these  several  houses  without  any  dividing  fences  between 
the  same. 

The  house  No.  17  Quincy  Street  was  built  in  1860-61, 
from  the  gift  of  $10,000  and  accumulated  income  made 
April  14,  1846,  by  Peter  C.  Brooks,  who  said  in  his  letter 
of  gift,  "  It  is  my  wish  that  this  sum  should  be  expended 
in  aid  of  the  erection  of  a  dwelling-house  for  the  presi- 
dent of  the  university  and  his  successors  whenever  it  may 
be  the  desire  of  the  present  president  that  a  new  house 
should  be  built." 


REPORT  OF  THE  SUPERIOR  COURT        5 

All  additions  and  repairs  upon  this  house  were  paid  for 
from  this  gift  and  accumulations  until  it  was  all  spent, 
and  since  then  such  repairs  and  additions  have  been  paid 
for  by  the  college. 

The  premises  are  kept  in  order  and  repair,  including 
grading,  graveling  walks,  fertilizing,  and  repairing  and 
cleaning  the  furnace,  removal  of  ashes,  etc.,  under  the 
direction  of  the  college  superintendent  of  buildings  and 
the  superintendent  of  grounds,  at  the  college  expense, 
and  for  the  most  part  by  the  college  employees.  Out- 
side repairs  are  made  by  the  superintendents  as  may 
seem  best  to  them  without  waiting  for  the  request  of  the 
occupant;  inside  repairs  are  made  by  them  upon  the 
occupant's  request. 

The  house  is  occupied  by  the  president  of  the  univer- 
sity and  his  family.  He  receives  as  such  president  a 
salary  and  pays  no  rent  or  compensation  for  the  use  and 
occupation  of  this  house.  He  has  no  lease  of  said  house, 
but  occupies  it  if  he  so  chooses  so  long  as  he  performs 
the  duties  of  the  office  of  president.  Partly  for  his  own 
convenience  and  partly  for  the  convenience  of  the  college, 
the  drawing-room  and  hall  are  used  for  meetings  of  the 
faculty  and  committees,  for  conferences  with  university 
officers  and  students,  for  calls  on  university  business,  and 
the  meeting  of  the  corporation  at  which  degrees  are 
voted  annually,  and  all  the  lower  floor,  except  possibly 
the  kitchen,  is  used  for  Class  Day,  Commencement,  and 
other  receptions,  and  for  many  hospitalities  incident  to 
the  president's  functions. 

The  rest  of  the  house  is  used  by  the  president  and  his 
family  as  a  dwelling-house,  consists  of  the  usual  living  and 
housekeeping  rooms  and  chambers,  and  no  other  use  than 
as  hereinbefore  stated  is  made  of  it. 

The  president  is  required  by  statute  of  the  university 
to  live  in  Cambridge. 

Since  the  house  was  built  the  presidents  have  lived  in 


6        REPORT  OF  THE  SUPERIOR  COURT 

it  in  manner  aforesaid,  but  neither  the  house  or  the  land 
upon  which  it  stands  was  ever  assessed  or  taxed  to  the 
college  until  the  year  1897,  nor  were  the  other  houses 
and  lands  hereinafter  mentioned  assessed  or  taxed  to  the 
college  prior  to  the  year  1897. 

2.  No.  17  Kirkland  Street, 

Assessed  1897,  30,475  feet  of  land  at  118,000 

House  at      6,000 


$24,000    Tax,  $420 

The  correct  area  of  this  land  is  28,953  square  feet. 
The  estate  was  conveyed  to  the  President  and  Fellows  of 
Harvard  College  on  May  25,  1889.  The  main  part  of 
the  building  is  used  above  the  lower  story  as  a  college 
dormitory,  and  it  is  in  charge  of  a  resident  proctor.  The 
college  at  its  own  expense,  by  its  superintendents,  janitor, 
and  employees,  attends  to  the  whole  of  the  repairs,  the 
daily  care,  cleaning,  making  beds,  removing  ashes,  etc., 
of  this  part  of  the  building;  the  students  hire  these 
rooms  of  the  college  and  are  charged  in  their  term  bills 
stated  sums  therefor,  which  amounted  in  the  year  1897 
to  the  gross  sum  of  $975. 

The  college  also  attends  to  all  the  outside  repairs  upon 
the  whole  building,  the  cutting  of  grass,  trimming  of 
trees,  raking  and  removal  of  leaves  and  rubbish,  gravel- 
ing of  walks,  grading,  etc.,  of  the  whole  lot.  Over  the 
ell  in  the  rear  the  three  rooms  are  used  for  the  sleeping 
rooms  of  the  servants  employed  in  the  building. 

The  lower  story  of  the  building  is  assigned  as  a  refec- 
tory for  the  Foxcroft  Club,  an  association  of  students  of 
the  university  organized  for  the  purpose  of  obtaining 
wholesome  food  at  cost.  The  college  receives  no  rent  or 
compensation  in  any  form  for  the  use  of  this  estate  by 
the  Foxcroft  Club.     The  college  pays  the  bills  of  the 


REPORT  OF  THE  SUPERIOR  COURT        7 

club  on  the  approval  of  the  officers  of  the  club,  charging 
interest  on  money  so  advanced  to  the  date  of  repayment, 
and  collects  on  regular  college  term  bills  these  charges 
against  the  students  for  their  board.  The  daily  care  of 
and  repairs  upon  the  part  of  the  building  used  by  the 
club  are  attended  to  by  the  club  at  its  expense,  except 
that  glazing  and  outside  repairs  are  attended  to  by  the 
college  at  the  college  expense. 

The  club  has  had  no  lease  or  fixed  term  of  use ;  it  has 
hitherto  used  the  premises  without  charge. 

3.  No.  11  Quincy  Street, 

Assessed  1897, 18,000  feet  of  land  at  $14,000 

House  at     5,000 


$19,000    Tax,  $332.50 

Since  1893  this  house  has  been  occupied  by  Professor 
George  H.  Palmer  and  his  wife.  Professor  Palmer  is 
Alford  Professor  of  Natural  Religion,  Moral  Philosophy, 
and  Civil  Polity.  Partly  for  his  convenience  and  partly 
for  the  convenience  of  the  college,  the  drawing-room  and 
hall  in  said  house  are  used  for  regular  college  exercises 
during  the  college  year,  and  also  for  interviews  with 
college  students  and  instructors  upon  business  of  the  uni- 
versity. The  rest  of  the  house  is  used  by  the  professor 
and  his  family,  and  consists  of  the  usual  living  and  house- 
keeping rooms  and  chambers. 

The  premises  are  cared  for  at  the  expense  of  the  col- 
lege in  the  same  manner  and  to  the  same  extent  as  is 
above  described  in  relation  to  No.  17  Quincy  Street. 

When  in  the  fall  of  the  year  the  salary  of  Professor 
Palmer  for  the  current  college  year  is  voted,  it  is  fixed  at 
a  certain  sum  "and  the  use  of  house  $750,"  otherwise 
Professor  Palmer  pays  no  rent  and  has  no  other  agree- 
ment for  his  occupation  and  use  of  said  house,  but  uses  it 
as  such  professor. 


REPORT  OF  THE  SUPERIOR  COURT 

4.  No.  16  Quincy  Street, 

Assessed  1897, 11,600  feet  of  land  at  86,600 

House  at    5,400 


$12,000     Tax,  $210 

This  estate  contains  10,940  square  feet  of  land  and  was 
conveyed  to  the  President  and  Fellows  of  Harvard  Col- 
lege as  a  gift  by  Henry  C.  Warren,  April  19,  1892. 

Since  1892  this  house  has  been  occupied  by  Assistant 
Professor  F.  C.  de  Sumichrast  and  family.  This  professor 
is  the  head  of  the  department  of  French  and  Chairman  of 
the  Freshman  Advisers  Committee  of  the  Faculty  of  Arts 
and  Sciences.  This  is  a  large  committee  of  about  twenty 
persons,  each  of  whom  has  charge  of  a  section  of  the 
Freshman  Class.  As  such  chairman,  partly  for  his  own 
convenience  and  partly  for  the  convenience  of  the  com- 
mittee, the  professor  has  a  great  number  of  interviews 
at  this  house  with  students  and  parents  in  his  drawing- 
room,  and  this  room  and  the  hall  adjoining  is  also  thus 
used  for  meetings  of  the  committee  and  for  other  college 
purposes  incident  to  his  several  duties.  The  rest  of  the 
house  is  used  by  the  professor  and  his  family,  and  consists 
of  the  usual  living  and  housekeeping  rooms  and  chambers. 

The  premises  are  cared  for  and  kept  in  repair  at  the 
expense  of  the  college  in  the  same  manner  and  to  the 
same  extent  as  is  above  described  in  relation  to  No.  17 
Quincy  Street. 

When  in  the  fall  of  the  year  his  salary  is  voted,  it  is 
fixed  at  a  certain  sum  "and  the  use  of  house  $500," 
otherwise  the  professor  pays  no  rent  and  has  no  other 
agreement  for  his  occupation  and  use  of  said  house,  but 
uses  it  as  such  professor. 

5.  No.  25  Quincy  Street, 

Assessed  1897,  28,000  feet  of  land  at  $16,000 

House  at      8,000 


$24,000     Tax,  $420 


EEPORT  OF  THE  SUPERIOR  COURT        9 

This  house  was  occupied  in  1897  and  prior  thereto  by 
Professor  N.  S.  Shaler  and  family.  Professor  Shaler  is 
Professor  of  Geology,  Dean  of  the  Lawrence  Scientific 
School,  Chairman  of  Committees  of  the  Faculty  of  Arts 
and  Sciences  on  Reception  of  Students,  Summer  Courses, 
Admission  to  the  Scientific  School  from  other  scientific 
schools,  Advisers  of  Scientific  Students,  and  Four  Year 
Courses  in  Scientific  School,  and  Chairman  of  the  Board 
of  Examination  Proctors. 

In  1892  the  college  at  its  own  expense  made  additions 
and  improvements  on  the  first  floor  of  the  house,  which 
made  it  more  convenient  for  the  transaction  of  college 
business  and  the  entertaining  of  guests  on  college  ac- 
count. The  drawing-room  and  hall  and  additions  are 
used  for  different  college  purposes  incident  to  the  several 
duties  of  Mr.  Shaler.  The  rest  of  the  house  is  used  by 
the  professor  and  his  family,  and  consists  of  the  usual 
living  and  housekeeping  rooms  and  chambers.  The  pre- 
mises are  cared  for  and  kept  in  repair  at  the  expense  of 
the  college,  in  the  same  manner  and  to  the  same  extent 
as  is  above  described  in  relation  to  No.  17  Quincy  Street. 
When  in  the  fall  of  each  year  the  salary  of  Professor 
Shaler  is  voted,  it  is  fixed  at  a  certain  sum  "  and  the  use 
of  house  $1000,"  otherwise  Professor  Shaler  pays  no  rent 
and  has  no  other  agreement  for  his  occupation  and  use  of 
said  house,  but  uses  it  as  such  professor  and  dean. 

6.  No.  37  Quincy  Street, 

Assessed  1897,  18,000  feet  of  land  at  $11,000 

House  at      6,000 


$17,000  Tax,  1297.50 

This  house  was  built  by  the  college  in  1849,  and  in 
1897  and  prior  thereto  was  occupied  by  C.  C.  Langdell, 
Dane  Professor  of  Law,  and  his  family.  It  is  cared  for 
and   kept   in   repair  at  the  expense    of  the  college,   in 


10       REPORT  OF  THE  SUPERIOR  COURT 

the  same  manner  and  to  the  same  extent  as  is  above 
described  in  relation  to  No.  17  Quincy  Street.  When  his 
salary  is  voted  in  the  fall  of  the  year,  it  is  fixed  at  a  cer- 
tain sum  "and  the  use  of  house  $700/'  otherwise  Profes- 
sor Langdell  pays  no  rent  and  has  no  other  agreement 
for  his  occupation  and  use  of  said  house,  but  uses  it  as 
such  professor. 

7.  No.  38  Quincy  Street, 

Assessed  1897,  10,000  feet  of  land  at  $6,000 

House  at    6,000 


$12,000     Tax,  $210 

These  premises  contain  21,149  square  feet  of  land. 
This  estate  has  not  been  assessed  or  taxed  from  the  time 
of  its  acquisition  by  the  college  until  the  year  1897, 
except  that  about  one  half  of  the  land  in  the  whole  lot  is 
reported  for  taxation  by  and  taxed  to  the  college  as 
unused  land,  and  the  other  half  is  now  taxed  as  above  by 
the  assessors. 

This  estate  was  conveyed  to  the  President  and  Fellows 
of  Harvard  College  as  a  gift  from  Henry  C.  Warren,  Jan- 
uary 28,  1892,  with  the  request  of  the  donor  that  no 
brick  or  stone  building  be  erected  on  the  premises  during 
his  life  without  his  consent  in  writing,  or  after  his  death 
without  the  similar  consent  of  any  person  named  by  him, 
if  then  living  in  the  same  house  as  at  the  time  of  the 
gift. 

This  house  in  1897  was  occupied  by  Professor  John  H. 
Wright,  Professor  of  Greek  and  Dean  of  the  Graduate 
School,  and  his  family.  The  drawing-room  and  hall 
therein  are  used  for  different  college  purposes  incident  to 
his  duties,  partly  for  his  own  convenience  and  partly  for 
the  convenience  of  the  college.  The  rest  of  the  house  is 
used  by  him  and  his  family,  and  consists  of  the  usual 
living    and    housekeeping   rooms   and    chambers.      The 


REPORT  OF  THE  SUPERIOR  COURT       11 

premises  are  cared  for  and  kept  in  repair  at  the  expense 
of  the  college,  in  the  same  manner  and  to  the  same  ex- 
tent as  is  above  described  in  relation  to  No.  17  Quincy 
Street. 

When  his  salary  is  voted  in  the  fall  of  each  year  it  is 
fixed  at  a  certain  sum  "and  the  use  of  house  $900," 
otherwise  Professor  Wright  pays  no  rent  and  has  no  other 
agreement  for  his  use  and  occupation  of  said  house,  but 
uses  it  as  such  professor  and  dean. 

8.  No.  11  Frisbie  Place, 

Assessed  1897,  20,000  feet  of  land  at  $8,000 

House  at  10,000 


$18,000     Tax,  $315 

This  is  a  part  of  the  land  conveyed  to  the  college  by 
Charles  and  Charlotte  Saunders  by  deed  dated  September 
1,  1863. 

This  house  in  1897  was  occupied  by  James  Barr  Ames, 
Bussey  Professor  of  Law  and  Dean  of  the  Law  School, 
and  his  family.  The  drawing-room  therein  and  hall 
adjoining  are  used  for  different  college  uses  and  purposes 
incident  to  his  duties,  partly  for  his  own  convenience  and 
partly  for  the  convenience  of  the  college.  The  rest  of 
the  house  is  used  by  the  professor  and  his  family,  and 
consists  of  the  usual  living  and  housekeeping  rooms  and 
chambers.  The  premises  are  cared  for  and  kept  in  repair 
at  the  expense  of  the  college,  in  the  same  manner  and  to 
the  same  extent  as  is  above  described  in  relation  to  No. 
17  Quincy  Street. 

When  his  salary  is  voted  in  the  fall  of  the  year,  it  is 
fixed  at  a  certain  sum  "and  the  use  of  house  $700," 
otherwise  Professor  Ames  pays  no  rent  and  has  no  other 
agreement  for  his  occupation  and  use  of  said  house,  but 
uses  it  as  such  professor  and  dean. 

The  several  deans  herein  mentioned  are  charged  each 


12       REPORT  OF  THE  SUPERIOR  COURT 

with  a  portion  of  the  administrative  duties  which  formerly 
devolved  exclusively  on  the  president. 

Upon  the  facts  as  above  agreed  I  ruled  that  I  was 
authorized  to  find,  and  did  therefore  find,  that  the  several 
properties  therein  referred  to  are  exempt  from  taxation 
and  found  for  the  petitioners  in  the  sum  of  twenty-nine 
hundred  twenty-two  and  fifty  hundredths  (2922.50)  dol- 
lars principal,  and  interest  thereon  from  October  7, 1897, 
to  wit :  the  sum  of  two  hundred  sixty-seven  and  ninety 
hundredths  (267.90)  dollars,  in  all  thirty-one  hundred 
ninety  and  forty  hundredths  (3190.40)  dollars. 

The  respondents  being  aggrieved  by  said  decision  duly 
excepted  thereto,  and  by  consent  of  the  parties  the  case 
is  reported  to  the  Supreme  Judicial  Court  for  its  decision. 

If  the  court  shall  determine  that  either  of  the  said 
properties  is  exempt  from  taxation,  judgment  shall  be 
entered  thereupon  for  the  petitioners  for  the  tax  assessed 
upon  such  property  and  interest  from  October  7,  1897  ; 
otherwise  judgment  shall  be  entered  for  the  respondent 
upon  such  of  said  properties  as  are  so  determined  not  to 
be  exempt  from  taxation. 

CHARLES   U.   BELL,   J.   S.   C. 


ON  November  16,  1899,  the  case  was  argued  before 
the  Full  Bench  of  the  Supreme  Judicial  Court, 
which  consisted  of  Chief  Justice  Holmes  and  Justices 
Barker,  Morton,  Lathrop,  Hammond,  and  Loring. 
Mr.  Samuel  Hoar,  on  behalf  of  Harvard  College,  and 
Mr.  Gilbert  A.  A.  Percy,  on  behalf  of  the  Assessors  of 
Cambridge,  argued  the  case  upon  the  following  printed 
briefs :  — 

BRIEF  FOR  HARVARD  COLLEGE 

Early  History  of  the  College 

Harvard  College  was  founded  in  1636  by  a  vote  of  the 
General  Court  of  the  Colony  of  Massachusetts  Bay,  which 
convened  on  September  8  of  that  year.  The  language 
of  the  order  was  as  follows  :  — 

The  Court  agree  to  give  Four  Hundred  Pounds  towards 
a  school  or  college,  whereof  Two  Hundred  Pounds  shall  be 
paid  the  next  year  and  Two  Hundred  Pounds  when  the 
work  is  finished,  and  the  next  Court  to  appoint  where  and 
what  building. 

In  1637  the  General  Court  appointed  twelve  of  the 
most  eminent  men  of  the  Colony  "  to  take  order  for  a 
college  at  Newtown." 

In  1638  the  name  Newtown  was  changed  by  the  Gen- 
eral Court  to  Cambridge,  in  recognition  of  the  English 
university,  where  many  of  the  Colonists  had  been  edu- 
cated. In  the  same  year,  after  the  gift  of  John  Harvard, 
the  college  was  given  the  name  of  Harvard. 

In  1642  the  general  government  of  the  college  and 
the  management  of  its  funds  were  placed  in  the  hands  of 
a  Board  of  Overseers  by  act  of  the  General  Court. 


14  BRIEF  FOR  HARVARD  COLLEGE 

In  1650  a  charter  was  granted  to  the  college  by  which 
the  college  was  made  a  corporation  consisting  of  a  Presi- 
dent, five  Fellows,  and  a  Treasurer,  to  be  called  by  the 
name  of  the  President  and  Fellows  of  Harvard  College. 

The  term  "university"  was  first  applied  to  Harvard 
College  in  1780,  in  the  Constitution  of  the  Commonwealth 
of  Massachusetts,  which  ratified  and  confirmed  to  the  presi- 
dent and  fellows  all  their  vested  powers,  rights,  and  im- 
munities. 

The  general  purpose  of  the  formation  of  the  college 
is  declared  to  be  for  the  "  advancement  and  education  of 
youth  in  all  manner  of  good  literature,  arts,  and  sciences  " 
(Charter,  May  31,  1650).  Nowhere  in  the  statutes  are 
the  terms  "  college  "  or  "  university  "  defined,  but  the 
president  and  fellows  are  given  power  to  make  such 
"  orders  and  by-laws  for  the  better  ordering  and  carry- 
ing on  the  work  of  the  college  as  they  shall  think  fit " 
(Charter). 

The  term  "  college,"  however,  had  a  very  definite  mean- 
ing in  the  minds  of  the  early  Colonists,  as  many  of  the 
leading  men  among  them  had  been  educated  in  English 
colleges.  And  inasmuch  as  the  General  Court  changed 
the  name  of  the  college  town  from  Newtown  to  Cam- 
bridge, in  recognition  of  one  of  the  great  English  univer- 
sities, we  must  believe  that  its  members  had  in  mind  the 
great  universities  of  England  as  models  for  the  new  college 
in  New  Ens-land.  An  examination  into  the  constitution 
and  scope  of  the  English  universities,  and  the  colleges  of 
which  they  are  aggregations,  ought  to  help  us  to  under- 
stand what,  in  the  minds  of  the  founders  of  Harvard  Uni- 
versity, could  properly  be  done  "  in  carrying  on  the  work 
of  the  college,"  or  in  the  language  of  the  statute  under 
consideration,  in  carrying  out  "  the  purposes  for  which 
they  were  incorporated." 

The  colleges,  it  must  be  distinctly  kept  in  mind,  were 
primarily  convictoria,  or  boarding-houses. 

Vol.  I.,  V.  A.  Huber,  English  Universities,  p.  178. 


BRIEF  FOR  HARVARD  COLLEGE  15 

Hammersley,  J.,  says  in  the  case  of  Yale  University 
•y.  New  Haven  :  — 

As  first  used,  "  college  "  indicated  a  place  of  residence 
for  students,  and  occasionally  a  "  universitas"  or  "  studium 
generate"  ...  A  suggestion  of  the  modern  university  ap- 
pears in  the  College  and  Library  of  Alexandria  founded 
and  endowed  by  Ptolemy  Soter.  Here  the  Museum  pro- 
vided from  the  first  lodgings  and  refectory  for  the  profes- 
sors, and  later  similar  provisions  were  made  for  the  students. 
...  At  first  little  more  than  lodging  rooms  and  refectory, 
they  [colleges]  grew,  especially  in  England,  to  be  the  home 
of  students  for  all  purposes.  The  instruction  and  discipline 
of  the  university  were  through  the  colleges.  .  .  .  With 
changes  in  conditions,  the  college  was  largely  eliminated 
from  the  Continental  universities,  while  in  England  the 
university  became  practically  the  associated  colleges.  Mer- 
ton  College,  Oxford,  founded  in  1264,  was  the  prototype 
of  the  English  college.  That  college  consisted  of  the  chapel, 
refectory,  and  dormitories.  ...  As  Newman  says,  the  uni- 
versity, to  enforce  discipline,  developed  itself  into  colleges, 
and  so  the  term  "  college  "  was  taken  to  mean  a  place  of 
residence  for  the  university  student,  who  would  there  find 
himself  under  the  guidance  and  instruction  of  superiors  and 
tutors  bound  to  attend  to  his  personal  interest,  moral  and 
intellectual.  See  passim  3  Newman,  Hist.  Sketches ;  Lyte's 
History  of  University  of  Oxford ;  1  &  2  Huber,  English 
Universities ;  Enc.  Brit.  "  Universities."  .  .  .  And  so  at  the 
beginning  of  the  seventeenth  century  the  students  of  an 
English  university  lived  in  colleges,  were  instructed  and 
governed  through  colleges,  whether  the  university  included 
a  number  of  colleges  or  a  single  college,  and  among  the 
buildings  indispensable  for  every  college  were  the  great  hall 
or  dining-room,  and  the  living  rooms  or  dormitories. 

Yale  University  v.  New  Haven,  71  Conn.  316. 
See  also  History  of  University  of  Oxford,  G.  C.  Broderick, 
Ch.  II.,  18-20. 

From  Atkinson  and  Clark's  "  History  of  the  University 
of  Cambridge  "  (p.  243)  it  appears  that  the  colleges  origi- 
nally were  lodging-houses  for  the  master  and  fellows,  and 
that  the  students  came  in  afterwards. 


16  BRIEF  FOR  HARVARD   COLLEGE 

At  Oxford  by  Statute  of  1432  all  members  of  the  uni- 
versity were  required  to  be  inmates  of  some  college  or 
hall,  except  those  who  should  be  especially  licensed  by 
the  Chancellor  to  live  in  lay  houses. 

Broderick,  Hist,  of  Un.  of  Oxford,  pp.  61,  62. 

Thus  at  the  time  that  Harvard  College  was  founded  the 
English  colleges  were  communities  of  fellows  and  scholars, 
each  housing  and  feeding  its  own  members,  including  the 
master  or  head  or  president,  and  each  with  the  necessary 
officers,  servants,  buildings,  and  equipment  for  attending 
to  the  physical  wants  of  its  inmates  ;  and  in  the  buildings 
of  which  an  English  college  usually  consisted  we  find  the 
president's  chamber,  the  fellows'  rooms,  scholars'  rooms, 
warden's  lodgings,  the  treasury,  the  library,  the  chapel, 
the  hall  or  commons,  buttery,  kitchen,  brewery,  store- 
house, offices,  and  stables. 

C.  Grant  Robertson,  University  of  Oxford,  All  Souls,  chap.  I. 

Stokes'  University  of  Cambridge,  Corpus  Christi,  chap.  II. 

Gray's  Queen's  College,  chap.  II.  and  VII. 

Broderick's  Hist,  of  University  of  Oxford,  chap.  II. 

And  in  like  manner  Harvard  College,  from  its  founda- 
tion, was  a  community  of  teachers  and  students  living  in 
the  college,  housed  and  fed  by  the  college.  In  College 
Book  Number  Three  of  the  Records  of  Harvard  College, 
the  first  step  taken  to  build  the  College  in  accordance 
with  the  vote  of  the  General  Court  of  the  Colony  of  Massa- 
chusetts Bay,  in  1636,  is  recorded  in  the  following  lan- 
guage :  — 

Mr.  Nathaniel  Eaton  was  chosen  Professor  of  said  School 
in  the  year  one  thousand  six  hundred  and  thirty-seven,  to 
whom  the  care  and  management  of  the  donations  before 
mentioned  were  intrusted,  for  the  erecting  of  such  edifices 
as  were  meet  and  necessary  for  a  college,  andybr  his  own 
lodgings. 

1  Quincy's  Hist.  Harv.  Un.,  452. 

Early  College  Buildings  by  A.  McF.  Davis,  p.  3. 


BRIEF  FOR  HARVARD  COLLEGE  17 

The  first  college  building  was  begun  by  Eaton,  and  was 
completed  by  Samuel  Shepard,  who  took  charge  in  1639. 
It  consisted  of  a  cellar,  a  hall  which  was  used  as  a  dining- 
room  and  for  recitations  and  religious  exercises,  a  library, 
a  kitchen,  a  buttery,  a  larder  or  pantry,  and  eight  cham- 
bers for  fellows  or  tutors  and  students,  two  of  them  small, 
and  intended  for  a  single  occupant  each,  the  others  in- 
tended for  three  or  four  occupants  each,  and  each  con- 
taining three  or  four  studies,  besides  five  studies  in  the 
"  turret." 

Davis'  Early  College  Buildings,  16  and  17. 
Davis'  College  in  Early  Days. 

The  second  college  building  was  the  president's  house. 
This  was  erected  by  the  college  under  the  supervision  of 
Henry  Dunster,  the  first  president  of  the  college,  who 
was  appointed  in  1640.  The  General  Court  early  recog- 
nized the  public  character  of  the  president's  house  by  a 
grant  in  the  following  language  (the  money,  however, 
was  never  paid) :  — 

The  13th  of  the  9th  mo.  A.  1644.  It  was  ordered  that 
Mr.  Dunster,  President  of  the  College  at  Cambridge,  shall 
have  £150  assigned  to  him  (to  be  gathered  by  the  Trea- 
surer for  the  College)  out  of  the  money  due  for  the  children 
sent  out  of  England,  to  be  expended  for  a  house  to  be  built 
for  the  said  President,  in  part  of  the  £400  promised  unto 
him  for  his  use,  to  belong  to  the  College. 

Quincy's  Hist.  Harv.  Un.,  Vol.  I.,  appendix  No.  VII.,  p.  473. 

This  house  was  occupied  by  the  president  and  his  family. 
In  it  were  also  the  printing  press  and  a  student's  room. 
Students'  rooms  were  also  provided  in  the  Goffe  house, 
which  was  purchased  by  the  college,  and  the  Indian  Col- 
lege built  for  the  "  convenience  of  six  hopeful  Indian 
youths  to  be  trained  up  there,"  but  occupied  generally 
by  some  twenty  white  students. 

In  College  Book  No.  1  we  find  the  duties  of  the  steward, 
the  cook,  the  butler,  and  the  servitors  or  waiters  set  forth 


18  BRIEF  FOR  HARVARD  COLLEGE 

with  the  greatest  minuteness ;  there  is  also  mention  of 
the  brewer  and  the  baker. 

Col.  Book  No.  1,  p.  23. 
There  are  detailed  regulations  for  the  orderly  conduct 
of  students  in  their  relations  with  the  outside  world  and 
with  the  college,  their  behavior  and  supervision  in  their 
chambers,  in  the  hall,  and  at  meals. 

Col.  Book  No.  1,  pp.  17  and  23,  157. 

It  has  always  been  the  law  that  "  the  president  shall 
constantly  reside  in  Cambridge." 

Col.  Book  No.  1,  p.  157. 
Report,  p.  4. 

President  Dunster  was  the  first  occupant  of  the  presi- 
dent's house,  and  when  he  was  forced  to  resign  in  1654, 
having  fallen  "  into  the  briers  of  Antipaedobaptism,"  he 
had  to  address  a  pathetic  appeal  to  the  General  Court 
to  save  himself  and  family  from  being  at  once  ejected 
from  the  house. 

Quincy's  Hist,  of  Harv.  Un.,  Vol.  I.,  pp.  18  and  19. 

In  the  year  1700,  after  Increase  Mather  had  finally 
consented  as  president  of  the  college  to  live  in  Cambridge, 
a  committee  of  the  General  Court  was  appointed  "  to  take 
care  that  a  suitable  place  was  provided  at  Cambridge  for 
the  reception  and  entertainment  of  the  President,  and  to 
consider  what  ought  to  be  done  with  respect  to  a  house 
already  built  for  a  President's  house." 

Quincy's  Hist,  of  Harv.  Un.,  Vol.  I.,  pp.  109  and  110. 

The  use  of  this  house  was  understood  to  be  part  of  the 
president's  compensation,  and  President  Leverett  peti- 
tioned for  compensation  for  the  "  demolition  in  part "  of 
the  house,  and  after  his  death  his  daughters  and  heirs 
petitioned  for  compensation  because  their  father  had  been 
deprived  of  the  use  of  the  president's  house  after  it  was 
pulled  down,  about  1720,  to  make  room  for  Massachusetts 
Hall. 


BRIEF  FOR  HARVARD  COLLEGE  19 

On  June  18,  1725,  a  committee  of  the  General  Court 
was  appointed  "  to  look  out  a  suitable  house  for  the  re- 
ception of  the  president  and  know  what  the  same  may 
be  had  for,"  and  on  June  23,  the  same  month,  the  same 
committee  was  "  further  empowered  to  hire  such  a  house 
for  the  space  of  six  months  next  coming,  or  until  they 
make  report  to  this  Court  in  their  fall  session." 
Resolves  of  1725. 

And  on  Jan.  1,  1726,  the  General  Court  passed  the 
following  resolve  for  the  purpose  of  providing  a  home 
for  President  Wadsworth,  which  house  has  ever  since  been 
known  as  the  Wadsworth  House  :  — 

And  whereas  there  is  not  at  present  any  convenient  house 
provided  for  the  reception  and  entertainment  of  the  presi- 
dent of  the  said  college  for  ye  future,  and  the  Court  being 
willing  and  desirous  to  repeat  their  intentions  and  inclina- 
tions in  all  things  for  ye  prosperity  of  that  society  and  that 
the  same  may  flourish  under  the  Divine  Influence, 

It  is  resolved  that  the  sum  of  one  thousand  pounds  be 
allowed  and  paid  out  of  the  public  treasury  to  the  corpora- 
tion of  Harvard  College  and  by  them  to  be  forthwith  used 
and  disposed  of  for  the  building  &  finishing  a  handsome 
wooden  dwelling  house,  barn,  out  housing  &c.  on  some  part 
of  ye  land  adjacent  and  belonging  to  the  said  college. 
Which  is  for  the  reception  and  accommodation  of  the  Rev. 
the  president  of  Harvard  College  for  the  time  being. 

A  statute  of  the  General  Court  of  the  Province  which 
authorized  a  lottery  for  the  purpose  of  raising  the  sum 
of  £3000  for  building  a  new  hall  for  lodging-rooms  for 
students,  has  the  following  preamble  :  — 

Whereas  the  buildings  belonging  to  Harvard  College 
are  greatly  insufficient  for  lodging  the  students  of  the  said 
college,  and  will  become  much  more  so  when  Stoughton 
Hall  shall  be  pulled  down,  as  by  its  present  ruinous  state 
it  appears  it  soon  must  be  ;  and  whereas  there  is  no  fund 
for  erecting  such  buildings,  and  considering  the  great  ex- 
pence  which  the  general  court  has  lately  been  at  in  building 


20  BRIEF  FOR  HARVARD  COLLEGE 

Hollis  Hall,  and  also  in  rebuilding  Harvard  College,  it  can- 
not be  expected  that  any  farther  provision  for  the  college 
should  be  made  out  of  the  public  treasury,  so  that  no  other 
resort  is  left  but  to  private  benefactions,  which  it  is  con- 
ceived, will  be  best  excited  by  means  of  a  lottery,  therefore, 
to  prevent  the  further  inconveniences  which  will  arise  from 
the  necessary  pulling  down  of  Stoughton  Hall  and  to  pro- 
vide for  the  present  want  of  lodging  rooms  in  the  said  col- 
lege, .  .  . 

Province  Laws  1765-66,  chap.  21. 

This  method  of  helping  the  college  to  provide  buildings 
for  its  students,  which  was  begun  under  the  authority  of 
the  Province  of  Massachusetts  Bay,  was  resorted  to  also 
under  the  authority  of  the  State  Legislature. 

Laws  and  Resolves,  1795,  chap.  1. 
Laws  and  Resolves,  1805,  chap.  5. 

In  the  early  history  of  the  college,  the  students  and 
the  professors,  fellows,  or  tutors  wrere  obliged  to  live  in 
the  college  unless  specially  excused.  At  a  meeting  of  the 
Overseers,  Anno  1660,  it  was  ordered  :  — 

That  no  student  shall  live  or  board  in  the  family  or  pri- 
vate house  of  any  Inhabitant  in  Cambridge  without  leave 
from  the  President  and  his  Tutor,  and  if  any  upon  such 
leave  obtained  shall  so  live,  yet  they  shall  attend  all  Col- 
lege Exercises,  religious  and  Scholasticall  &  be  under  Col- 
ledge  Order  &  Discipline  as  others  ought  to  do  &  be  that 
are  resident  in  the  Colledge  &  shall  pay  allso  five  shillings 
a  Quarter  towards  Colledge  Detriment,  beside  their  Tutor- 
age. 

Col.  Book  No.  2,  p.  23. 

Anno  1666.  It  is  ordered  by  the  Overseers  that  such  as 
are  fellows  of  the  Colledge,  &  have  sallaryes  payd  them  out 
of  the  Treasury  shall  have  their  constant  Residence  in  the 
Colledge,  and  shall  lodge  therein  &  be  present  with  the 
Schollars  at  meal  times  in  the  Hall,  have  their  studyes  in 
the  Colledge  that  so  they  may  be  better  enabled  to  inspect 
the  manners  of  the  Schollars  &  prevent  all  unnecessary 
Dammage  to  the  Society. 


BRIEF  FOR  HARVARD   COLLEGE  21 

College  Book  No.  3,  p.  25. 

Quincy's  Hist,  of  Harv.  Un.,  Appen.  No.  4,  pp.  540,  549. 

In  the  College  Laws  of  1734,  chap.  5,  par.  1,  it  is  pro- 
vided as  follows :  — 

All  the  Tutors,  &  Professors,  Graduates  &  Undergradu- 
ates, who  have  studies  in  College,  shall  constantly  be  in 
commons,  while  actually  residing  at  College,  vacation  time 
excepted:  and  shall  Dine  and  Sup  in  the  Hall,  at  ye  stated 
meal  times,  except  waiters  (and  such  whose  Parents  or 
Guardians  live  so  nigh  that  they  may  conveniently  board 
with  them)  and  such  others  as  the  President  and  Tutors 
shall  in  cases  of  necessity  exempt,  Provided  always  that  no 
Professor  or  Tutor  shall  be  exempted  but  by  leave  of  the 
Corporation  with  the  consent  of  the  Overseers.  And  the 
Tables  shall  be  covered  with  clean  linen  cloaths,  of  a  suit- 
able length  and  breadth  twice  a  week,  and  furnished  with 
Pewter  Plates,  the  plates  to  be  procured  at  ye  charge  of  the 
College,  and  afterwards  to  be  maintained  at  the  charge  of 
the  Scholars,  both  Graduates  and  Undergraduates,  in  such 
manner  as  the  Corporation  shall  Direct. 

College  Book  No.  1,  pp.  168,  169. 

Laws  of  1790,  Chap.  VIII.,  par.  2  :  The  professors  shall 
constantly  reside  at  Cambridge,  near  the  College,  and  the 
Tutors  and  Librarian  in  the  College.  And  the  Corporation 
shall  assign  to  the  Tutors,  and  such  Professors  as  reside  in 
the  College,  their  respective  chambers. 

The  laws  and  practices  of  the  University  have  been 
substantially  the  same  to  the  present  time,  housing  as 
many  of  its  students  as  it  can  find  chambers  for,  feeding 
them  in  one  or  more  halls  or  dining-rooms,  and  requiring 
them  to  live  as  much  as  possible  under  the  supervision  of 
tutors  and  professors,  who,  as  far  as  practicable,  are  re- 
quired to  live  in  college  buildings,  or  so  near  the  college 
that  they  can  exert  a  guiding  and  restraining  influence 
over  the  students. 

Laws  of  1798,  Chap.  VIII.,  par.  2,  and  subsequent  years. 


22  BRIEF  FOR  HARVARD   COLLEGE 

ARGUMENT 


Exempting  Statutes 

From  the  foregoing  historical  references,  it  is  very  evi- 
dent that  from  the  beginning  the  Corporation  and  the 
Overseers  of  Harvard  College  have  considered  the  Col- 
lege to  be  essentially  a  community  of  teachers  and  stu- 
dents, housed  and  fed  in  the  college,  living  in  college 
buildings,  subject  to  the  disciplinary  rules  of  the  College 
where  the  restraining  and  guiding  influences  of  the  presi- 
dent and  teachers  could  be  brought  directly  to  bear  upon 
the  students.  It  is  equally  clear  that  in  accordance  with 
this  idea,  they  considered  it  absolutely  necessary  for  the 
accomplishment  of  the  purposes  for  which  the  college 
was  incorporated  that  it  should  have  buildings  suitable 
for  housing  and  feeding  its  president  and  teachers  and 
students. 

The  historical  evidence  is  quite  as  strong  that  the  Gen- 
eral Courts  of  the  Colony  of  Massachusetts  Bay,  of  the 
Province  of  Massachusetts  Bay,  and  of  the  Commonwealth 
of  Massachusetts  held  the  same  view  of  the  college,  and 
of  the  means  necessary  for  the  accomplishment  of  its 
purposes,  for  we  have  seen  that  the  Colony,  the  Province, 
and  the  Commonwealth  at  times  when  their  resources 
were  very  limited,  provided,  or  helped  to  provide,  build- 
ings to  be  used  as  the  dwelling  places  or  homes  of  the 
president,  teachers,  and  students  of  the  College. 

It  would  certainly  be  a  very  strange  and  illogical  policy 
for  the  Colony,  the  Province,  or  the  Commonwealth  to 
put  a  tax  upon  buildings  which  they  considered  so  essen- 
tial to  the  College  that  they  strained  their  own  resources 
to  help  build  and  maintain  them,  or  to  tax  buildings 
which  are  used  for  the  same  purposes  as  those  which  they 
so  helped  to  construct  and  maintain.     But  an  examina- 


BRIEF  FOR  HARVARD  COLLEGE  23 

tion  of  the  laws  by  which  Harvard  College  has  been 
exempted  from  taxation  will  show  that  such  an  unreason- 
able and  illogical  policy  was  never  put  in  force  by  either 
of  the  sovereign  powers  under  which  the  College  has 
existed. 

Under  its  charter,  which  it  received  from  the  Colony, 
the  College  was  authorized  to  hold  real  estate  not  exceed- 
ing the  value  of  five  hundred  pounds  per  annum  and  any 
amount  of  personal  property ;  its  real  estate,  not  exceed- 
ing the  value  of  five  hundred  pounds  per  annum,  and  all 
its  personal  property  was  exempted  from  taxation ;  in 
other  words,  under  its  charter  all  its  property  was  ex- 
empted. 

Stat,  of  May  31,  1650. 

This  exemption  granted  by  the  Colony  in  the  charter 
has  ever  since  been  respected  by  the  Province  and  the 
Commonweath ;  it  is  in  force  to-day  and  applies  to  all 
the  property  which  the  College  had  when  it  received  its 
charter. 

Hardy  v.  Waltham,  7  Pick.  108 

Harvard  College  v.  Aldermen  of  Boston,  104  Mass.  470. 

The  Province,  however,  did  more  than  observe  the 
exemption  of  the  charter  of  the  College ;  it  expressly 
exempted  all  its  property,  and  in  all  the  numerous  acts 
passed  by  the  General  Court  of  the  Province  of  Massa- 
chusetts Bay  for  apportioning  and  assessing  taxes,  we 
find  provisions  substantially  in  the  same  form,  exempting 
from  assessment  both  the  property  of  the  College,  and 
with  some  qualifications,  that  of  the  President,  Fellows, 
instructors,  and  students  of  the  College. 

In  the  last  of  these  acts  passed  by  the  General  Court 
of  the  Province,  the  language  of  the  exemption  is  as  fol- 
lows :  — 

Provided,  nevertheless,  that  the  following  persons,  viz., 
the  president,  fellows,  professors,  tutors,  librarian,  and  stu- 
dents of  Harvard  College  who  have  their  usual  residence 


24  BRIEF  FOR  HARVARD   COLLEGE 

there,  .  .  .  are  not  to  be  assessed  for  their  polls  or  their 
estate,  unless  their  real  estate  be  not  under  their  actual 
management  and  improvement ;  .  .  .  and  also  all  persons 
who  have  the  management  and  improvement  of  the  estate 
of  Harvard  College  are  not  to  be  assessed  for  the  same. 

Province  Laws  1780,  chap.  16,  sec.  4. 

The  first  act  of  the  General  Court  of  the  Common- 
wealth, apportioning  and  assessing  a  tax,  —  Laws  and 
Resolves  of  1780,  chap.  43,  —  contains  exactly  the  same 
provision  as  that  above  copied  from  the  Province  Laws  of 
the  same  year.  And  this  identical  clause  of  exemption 
is  found  in  all  the  subsequent  acts  down  to  1784  (L.  &  R. 
1781,  chap.  28;  1782,  chap.  65;  1784,  chap.  23;  1784, 
chap.  25). 

The  first  clause  of  these  provisions  which  exempted  the 
president,  fellows,  tutors,  librarian,  and  students  of  Har- 
vard, and  later  of  Williams  and  Amherst,  and  of  all  theo- 
logical, medical,  and  literary  institutions  and  preceptors 
of  academies,  was  repeated  in  the  various  tax  statutes, 
with  slight  modifications,  until  1829,  when  it  was  repealed 
(Acts  of  1828,  chap.  143,  passed  March  4,  1829),  and  we 
need  not  further  consider  it. 

In  chap.  23  of  the  Laws  and  Resolves  of  1784,  an  Act 
for  ascertaining  the  ratable  property  of  the  Common- 
wealth, the  clause  exempting  the  college  property  is  as 
follows  :  — 

Provided  also  that  all  the  estate  of  Harvard  College  and 
lands  belonging  to  the  Indians  are  excluded  from  this  Act. 

In  the  Act  of  1785  apportioning  and  assessing  a  tax, 
the  exempting  clause  is  as  follows  : 

And  also  all  persons  who  have  the  management  or  im- 
provement of  the  estate  of  Harvard  College  are  not  to  be 
assessed  for  the  same. 

And  the  provision  was  repeated  in  substantially  the 
same  form  in  every  subsequent  Act  down  to  1801,  the 


BRIEF  FOR  HARVARD  COLLEGE  25 

exemption  being  extended  to  the  property  of  Williams 
College  in  1794  and  of  Bowdoin  in  1795  (1787,  chap.  56 ; 
1788,  chap.  67A ;  1789,  chap.  49;  1790,  chap.  25A ; 
1793,  chap.  9A ;  1794,  chap.  9;  1795,  chap.  11;  1796, 
chap.  6  and  51  ;  1798,  chap.  75;  1799,  chap.  49;  1800, 
chap.  77;  1801,  chap.  82). 

In  the  Acts  passed  in  1801,  1811,  and  1821,  for  ascer- 
taining the  ratable  estates  in  the  Commonwealth  (1800, 
chap.  66 ;  1810,  chap.  79,  and  1820,  chap.  64)  the  pro- 
perty of  the  colleges  and  academies  is  excluded  from  the 
ratable  estates  in  the  following  words  :  — 

And  also  all  the  estates  belonging  to  the  said  Harvard 
and  Williams  Colleges  and  to  said  academies. 

And  in  the  Acts  for  apportioning  and  assessing  taxes 
in  1802  and  subsequent  thereto  is  the  provision  :  — 

And  also  all  persons  who  have  the  management  of  the 
estates  of  Harvard  College,  Williams  College,  and  Bowdoin 
College,  and  academies  aforesaid  in  this  Commonwealth, 
are  not  to  be  assessed  for  the  same. 

This  was  repeated  in  each  annual  Tax  Act  down  to  and 
including  1807. 

The  Tax  Act  of  1808  (March  12,  1808)  contains  the 
following  provision :  — 

And  that  all  persons  who  have  the  management  of  the 
estates  of  Harvard,  Williams,  and  Bowdoin  Colleges,  and 
of  the  academies  aforesaid  respectively,  shall  not  be  assessed 
for  the  same.  .  .  .  Provided,  however,  that  nothing  in  this 
Act  contained  shall  be  so  construed  as  to  prevent  the  town 
of  Cambridge  from  taxing  the  houses  or  lands  belonging  to 
the  Corporation  of  Harvard  College  without  the  college 
bounds,  in  their  town  tax,  excepting  such  estates  as  are 
improved  by  the  president  of  said  college,  Professor  of 
Theory  and  Practice  of  Physics,  Professor  of  Theology, 
Professor  of  Mathematics,  and  Tutor  of  Logic,  Metaphysics, 
and  Ethics. 

This  language  was  repeated  in  each  annual  Tax  Act  to 


26  BRIEF  FOR  HARVARD  COLLEGE 

and  including  1817.  It  is  clear  that  the  property  of  the 
college  exempted  from  the  town  tax  by  these  Acts  of 
1808-1817  cannot  be  other  than  the  separate  residences 
of  the  officers  named.  If  the  property  described  as  the 
houses  and  land  belonging  to  the  college  without  the 
college  bounds,  and  improved  by  the  president  of  the  col- 
lege, the  Professor  of  Physics,  the  Professor  of  Theology, 
the  Professor  of  Mathematics,  and  the  Tutor  of  Logic, 
Metaphysics,  and  Ethics,  does  not  mean  the  residences  of 
these  professors,  allotted  to  them  by  the  college,  it  is 
hard  to  imagine  what  these  words  do  describe,  for  the 
recitation  rooms  used  by  the  president  and  the  other 
instructors  named  were  not  at  that  time  without  the  col- 
lege bounds,  and  if  they  were,  they  could  not  be  said  to 
be  improved  by  these  professors. 

In  1818  the  language  of  the  exemption  was  the  same 
as  that  of  1808,  except  the  proviso,  which  was  as  follows: 

Provided,  however,  that  nothing  contained  in  this  Act 
shall  be  so  construed  as  to  prevent  the  town  of  Cambridge 
from  taxing  the  houses  or  lands  belonging  to  the  corpora- 
tion of  Harvard  College  without  the  college  bounds  in  their 
town  tax,  excepting  such  estates  as  are  occupied  by  the 
president  of  said  college,  or  by  any  of  the  professors,  tutors, 
or  instructors  thereto  belonging,  or  by  students,  or  resident 
graduates,  or  shall  be  unoccupied. 

This  clearly  could  operate  as  an  extension  of  the 
exemption. 

The  exempting  clause  in  the  Act  of  1819  was  the  same 
as  that  of  1818,  except  that  this  clause  is  inserted  before 
the  proviso  :  — 

Nor  shall  the  Massachusetts  General  Hospital  be  assessed 
for  any  real  or  personal  estate  belonging  to  the  same. 

The  Tax  Acts  of  1820  and  1821  contained  the  same 
exempting  clause  as  in  1819,  except  that  "  Bowdoin  Col- 
lege "  is  omitted  from  the  Act  of  1821,  being  then  in 
Maine. 


BRIEF  FOR  HARVARD  COLLEGE  27 

The  Act  of  1822  was  similar  to  that  of  1821,  with  the 
following  added  at  the  end  of  the  proviso :  — 

Or  to  prevent  the  town  of  Andover  from  taxing  such  real 
estate  belonging  to  the  corporation  of  Phillips  Academy 
situated  in  said  town  as  shall  not  be  under  the  immediate 
occupation  and  improvement  of  said  corporation,  or  of  any 
person  or  persons  connected  with  said  corporation  exempted 
from  taxation  by  this  Act.  And  provided  also,  that  when- 
ever the  real  and  personal  estate  of  any  one  of  the  persons 
before  enumerated  as  exempted  from  taxation  shall  exceed 
the  sum  of  eight  thousand  dollars,  the  excess  of  such  per- 
son's estate  shall  be  taxed  as  in  other  cases  notwithstanding 
before  provided  by  this  Act. 

The  exempting  provision  in  1823  and  1824  was  the 
same  as  in  1822,  except  that  in  1824  the  phrase  "  Berk- 
shire Medical  Institution  or  the  Boston  Atheneum  "  is 
inserted  after  Massachusetts  General  Hospital. 

We  find  no  State  Tax  Act  between  1824  and  1829. 
In  1829  the  exempting  clause  was  as  follows :  — 

Sec.  6.  Be  it  further  enacted,  that  all  persons  who  have 
the  management  of  the  estates  of  Harvard,  Williams,  and 
Amherst  Colleges  and  of  the  Academies  established  by  law 
respectively,  shall  not  be  assessed  for  the  same,  and  that 
Indians  shall  not  be  assessed  for  their  polls  and  estates,  nor 
shall  the  Massachusetts  General  Hospital,  Berkshire  Medi- 
cal Institution,  or  the  Boston  Athen?eum  be  assessed  for 
any  real  or  personal  estate  belonging  to  them  respectively. 
.  .  .  Provided,  however,  that  nothing  contained  in  this  act 
shall  be  so  construed  as  to  prevent  the  town  of  Cambridge 
from  taxing  the  houses  or  lands  belonging  to  the  corpora- 
tion of  Harvard  College  without  the  College  bounds  in 
their  town  tax  excepting  such  estates  as  are  occupied  by 
the  president  of  said  College,  or  by  any  of  the  professors, 
Tutors,  or  Instructors  thereto  belonging,  or  by  students  or 
resident  graduates,  or  shall  be  unoccupied,  or  to  prevent 
the  town  of  Andover  from  taxing  such  real  estate  belonging 
to  the  corporation  of  Phillips  Academy  situated  in  said 
town  as  shall  not  be  under  the  immediate  occupation  and 
improvement  of  said  corporation. 


28  BRIEF  FOR  HARVARD  COLLEGE 

This  language  is  also  found  in  the  Acts  of  1830  and 
1831. 

There  was  no  State  Tax  Act  between  1831  and  1834. 
The  act  passed  in  1830  for  ascertaining  the  ratable  estates 
for  the  following  ten  years,  excepted 

All  the  estates  belonging  to  Harvard,  Williams  and  Am- 
herst Colleges  and  to  incorporated  Theological  Institutions 
and  Academies  and  also  the  estate  belonging  to  the  Massa- 
chusetts General  Hospital  and  improved  for  the  purposes 
of  that  Institution.     (Acts  of  1830,  chap.  130.) 

This  is  the  complete  legislative  history  of  the  exemp- 
tion from  taxation  of  the  property  of  Harvard  College 
down  to  1835.  We  have  included  therein  the  statute 
exemptions  of  the  other  colleges,  academies,  and  educa- 
tional institutions  of  the  Commonwealth,  for  the  reason 
that  in  1835  the  legislation  exempting  the  property  of 
each  one  of  these  institutions  separately  and  with  par- 
ticularity was  revised  and  condensed  by  the  employment 
of  general  terms  into  one  general  provision  affecting  all 
of  them.  This  review  of  the  various  statutes  shows  that 
neither  the  Colony,  the  Province,  nor  the  Commonwealth, 
up  to  1835,  ever  taxed  the  houses  or  lands  of  the  College 
that  were  occupied  by  its  president,  professors,  tutors, 
instructors,  students,  or  resident  graduates. 

The  Commissioners  appointed  in  1832  "  to  revise,  col- 
late and  arrange,  as  well  the  Colonial  and  Provincial  Stat- 
utes as  all  other  the  General  Statutes  of  the  Common- 
weath  which  are  or  may  be  in  force  at  the  time  when 
such  Commissions  may  finally  report,"  reported  on  the 
subject  in  question,  in  December,  1834,  as  follows  :  — 

The  following  property  and  polls  shall  be  exempted  from 
taxation,  namely, 

Second.  The  property  of  the  Massachusetts  General  Hos- 
pital, the  Boston  Atheneum,  and  the  Berkshire  Medical 
Institution. 

Third.   The  property  of  Harvard  College ;  provided,  how- 


BRIEF  FOR  HARVARD  COLLEGE  29 

ever,  that  the  inhabitants  of  the  town  of  Cambridge  may, 
for  town  purposes,  tax  such  real  estate  in  that  town  belong- 
ing to  the  Corporation  of  Harvard  College  as  is  not  within 
the  college  bounds  and  is  not  occupied  by  the  president,  or 
any  professor,  instructor,  tutor,  student,  or  resident  grad- 
uate, and  also  such  as  shall  be  unoccupied. 

Fourth.  The  property  of  Phillips  Academy  in  Andover; 
provided,  however,  that  the  Inhabitants  of  the  town  of  An- 
dover may,  for  town  purposes,  tax  such  real  estate  in  that 
town  belonging  to  the  Corporation  of  Phillips  Academy, 
as  is  not  under  the  immediate  occupation  or  improvement 
of  said  corporation,  or  of  any  person  who  is  connected  with 
said  corporation,  and  is  exempted  in  this  chapter  from  taxa- 
tion. 

Fifth.  The  property  of  Williams  College  and  Amherst 
College. 

Sixth.  The  property  of  every  academy  incorporated 
under  the  authority  of  this  Commonwealth. 

The  Commissioners  were  instructed  in  the  resolve 
authorizing  their  appointment  "  to  execute  and  complete 
said  revision  in  such  manner  as  in  their  opinion  will  ren- 
der the  said  General  Laws  most  concise,  plain,  and  intel- 
ligible." There  was  in  the  clauses  of  sect.  5  of  chap.  7 
of  their  report,  however,  little  or  no  attempt  at  concise- 
ness. The  Legislature  was  evidently  of  opinion  that  it 
could  improve  the  language  in  this  regard,  while  at  the 
same  time  equalizing  the  privilege  granted  to  the  various 
institutions  named.  And  in  the  Revised  Statutes,  chap. 
7,  sect.  5,  these  five  clauses  were  condensed  into  the  fol- 
lowing form  :  — 

Secondly.  The  personal  property  of  all  literary,  benevo- 
lent, charitable,  and  scientific  institutions  incorporated 
within  this  Commonwealth,  and  such  real  estate  belonging 
to  such  institutions  as  shall  actually  be  occupied  by  them 
or  by  the  officers  of  said  institutions  for  the  purposes  for 
which  they  were  incorporated. 

In  the  subsequent  revisions  of  the  statutes  in  1860 
and  1881,  and  in  the  amending  Act  of  1889,  substantially 


30  BRIEF  FOR  HARVARD   COLLEGE 

the  same  language  is  employed  with  certain  additions 
that  are  immaterial  in  the  consideration  of  this  case,  and 
as  there  is  no  contention  that  the  Legislatures  of  1860, 
1881,  and  1889,  while  using  the  language  of  the  Revised 
Statutes,  intended  to  change  the  meaning  thereof,  the 
question  for  us  to  consider  is  what  changes  the  Legisla- 
ture of  1835  intended  to  make,  or  what  meaning  they 
intended  to  give  to  the  general,  condensed  language  of 
the  exempting  provision  above  quoted. 

If  we  compare  the  language  of  the  Revised  Statutes 
with  that  of  the  Commissioners'  Report,  or  with  the  State 
Tax  Act  of  1831,  of  which  the  Commissioners'  Report  is 
a  restatement,  it  becomes  evident  that  the  Legislature  of 
1835  intended  — 

First.  To  give  all  the  institutions  named  in  the  Stat- 
ute of  1831,  and  to  all  other  literary,  benevolent,  chari- 
table, and  scientific  institutions  incorporated  within  this 
Commonwealth,  the  same  right  to  exemption  from  taxa- 
tion. 

Second.  To  give  to  the  State  and  to  the  Towns  of 
Cambridge  and  Andover  an  equal  right  to  impose  taxes 
on  the  institutions  within  those  towns. 

Third.  That  the  mere  fact  that  the  property  of  the 
College  was  "  within  the  college  bounds  "  (if  that  phrase 
means  anything  more  than  "  actually  occupied  by  "  the 
College),  or  that  it  was  unoccupied,  should  no  longer  be 
sufficient  grounds  for  exempting  it  from  taxation.  We 
think  that  it  is  more  than  probable  that  property  which 
under  the  Act  of  1831  would  be  designated  as  inside  the 
College  bounds  is  included  in  that  which  under  the 
Revised  Act  would  be  designated  as  actually  occupied  by 
the  College. 

Fourth.  This  Court  has  declared  in  Williams  College  v. 
Williamstown,  967  Mass.  508,  that  the  president,  profes- 
sors, and  instructors  of  a  college  are  officers  thereof ; 
therefore,  by  the  phrase  "  officers  of  the  said  institution  " 


BRIEF  FOR  HARVARD  COLLEGE  31 

in  the  Revised  Act,  the  Legislature  must  be  held  to  in- 
clude "  the  president,  or  any  of  the  professors,  tutors,  or 
instructors "  of  the  Act  of  1831.  It  probably  also  in- 
cludes other  officers  than  those  enumerated  in  the  Act  of 
1831. 

Fifth.  In  omitting  the  phrase,  property  occupied  by 
the  "  students  or  resident  graduates,"  the  Legislature  of 
1835  very  likely  intended  no  alteration  in  the  sense 
thereby,  for  the  reason  that  they  considered  that  a  build- 
ing of  which  the  college  kept  the  control,  which  was 
under  the  supervision  of  college  officers  (resident  proc- 
tors), in  which  students'  rooms  were  cleaned  and  kept  in 
order  by  college  servants  (goodies);  where  all  repairs 
and  alterations  were  made  by  the  college ;  where  the 
students  had  no  right  to  the  hallways,  except  to  pass 
through  them,  or  to  the  rooms  except  to  use  them  as 
mere  licensees  during  the  college  term  as  dwelling  places 
and  studies,  was  actually  occupied  by  the  college,  so  that 
we  may  conclude  that  the  phrase  "  actually  occupied  by 
them,"  of  the  Revised  Act,  includes  the  same  property 
which  under  the  Act  of  1831  would  be  designated  as 
"  within  the  college  bounds,"  and  occupied  by  the  "  stu- 
dents or  resident  graduates." 

Sixth.  Under  the  Act  of  1831  the  purpose  of  the  occu- 
pancy was  assumed  to  be  educational  or  charitable  in 
gaining  the  exemption  for  the  property  occupied  by  the 
officers  designated.  Under  the  Revised  Act  this  assump- 
tion is  expressed  and  the  occupancy  must  still  be  for  the 
purpose  for  which  the  institution  was  incorporated  in 
order  to  give  it  the  right  of  exemption. 

We  believe  we  have  here  indicated  all  the  changes 
that  the  Legislature  of  1835  intended  to  make  in  this  law 
of  exemption,  as  it  then  existed,  namely,  making  it  apply 
to  all  the  institutions  designated  equally,  making  the 
right  of  State  tax  and  town  tax  coextensive,  increasing 
the  class  of  officers  whose  occupancy  may  gain  the  right 


32  BRIEF  FOR  HARVARD  COLLEGE 

of  exemption,  and  therefore  requiring  in  terms  that  the 
occupancy  be  for  the  purpose  for  which  the  institution 
was  incorporated.  Only  the  latter  of  these  changes  is 
material  to  this  case,  —  the  purpose  of  the  occupancy. 


II 

"  Occupied  by  the  Officers  " 

As  a  majority  of  this  Court  have  apparently  based 
their  decision  in  a  recent  case  upon  the  quality  or  kind 
of  occupancy,  it  becomes  important  to  consider  the  mean- 
ing of  this  word  "  occupied  "  which  is  used  in  the  stat- 
utes both  before  and  since  the  revision  of  1835.  When 
a  term  of  one  statute  is  used  in  a  later  statute  upon  the 
same  subject  matter,  we  have  a  right  to  infer  that  it  is 
used  in  the  same  sense  in  each  (Commonwealth  v.  Hart- 
nett,  3  Gray,  450).  In  the  Statute  of  1831  we  have  the 
words  "  occupied  "  and  "  unoccupied  "  applied  to  property 
"  belonging  to  the  corporation."  It  is  evident  from  this 
that  "occupied"  is  not  used  in  the  constructive  sense  in 
which  property  that  has  no  other  occupant  is  said  to  be 
occupied  by  the  owner  after  he  has  once  taken  possession, 
although  the  property  may  at  the  time  be  actually  "  un- 
occupied." What  was  necessary  under  the  Statute  of 
1831  was  the  actual  occupancy  by  one  of  the  officers 
named.  There  can  be  no  doubt  that  under  this  Statute 
of  1831  occupancy  by  a  professor  under  a  written  or  oral 
lease  of  property  belonging  to  the  college  would  exempt 
the  college  from  taxation  for  the  property  so  leased,  for 
such  property  would  belong  to  the  college  and  be  occu- 
pied by  its  professor,  which  is  literally  what  the  statute 
required. 

As  proof  of  what  we  have  just  said,  that  the  Statute  of 
1831  required  actual  occupancy,  we  observe  that  the 
word  "  actually  "  is  used  in  the  Revised  Act,  the  language 


BRIEF  FOR  HARVARD  COLLEGE  33 

being  "  such  real  estate  belonging  to  such  institutions  as 
shall  actually  be  occupied  by  them,  or  by  the  officers  of 
said  institutions  for  the  purposes  for  which  they  were 
incorporated."  It  is  true  that  in  the  subsequent  revisions 
of  this  Act,  the  word  "  actually "  was  omitted,  but  this 
was  "without  any  apparent  intention  of  changing  the 
meaning,"  as  has  been  said  by  this  Court.  This  Court 
has  also  defined  in  the  same  case  what  the  words  "  shall 
actually  be  occupied  by  them"  (the  institution)  means  in 
the  following  manner  :  — 

The  word  "  occupied "  in  the  statute  is  not  used  in  the 
general  sense  in  which  a  corporation  or  individual  may  be 
said  to  occupy  their  real  estate  when  it  is  not  occupied  by 
any  one  else,  but  in  the  sense  in  which  an  incorporated  col- 
lege, academy,  hospital,  or  like  institution,  occupies  its 
college,  academy,  or  hospital,  and  the  lands  and  buildings 
connected  therewith.  That  this  was  the  intention  of  the 
Legislature  is  shown  by  the  Statute  of  1878,  chap.  214, 
passed  probably  in  consequence  of  the  decision  of  Trinity 
Church  v.  Boston,  118  Mass.  164,  which  provides  that  "  the 
real  estate  belonging  to  such  institutions  as  are  mentioned 
in  the  third  division  of  section  five  of  chapter  eleven  of  the 
General  Statutes,  purchased  with  a  view  of  removal  thereto, 
shall  not  be  exempt  from  taxation  for  a  longer  period  than 
two  years  until  such  removal  takes  place." 

Lynn  Workingmen's  Aid  Association  v.  Lynn,  136  Mass.  at 

285. 

It  is  clear  that  an  incorporated  institution  can  "  occupy 
a  college,  academy,  or  hospital,  or  lands  or  buildings  con- 
nected therewith  "  only  by  its  officers  or  agents ;  there- 
fore the  phrase  "  actually  occupied  by  them "  covers 
every  occupation  on  behalf  of  such  an  institution  by  its 
officers  or  agents. 

There  is  a  well-known  rule  of  construction  "  that  every 
clause  and  word  of  a  statute  shall  be  presumed  to  have 
been  intended  to  have  some  force  and  effect "  (Opinion 
of  the  Justices,  22  Pick.  571,  at  573) ;  therefore  we  must 


34  BRIEF  FOR  HARVARD  COLLEGE 

hold  that  this  latter  clause,  "  actually  occupied  by  their 
officers/'  means  something  different  from  "  actually  occu- 
pied by  them  "  (the  institution) ;  it  means  the  occupancy 
by  officers  where  the  officers  themselves  are  in  occupa- 
tion, and  not  the  institution  through  its  officers  or  agents. 
This  will  become  more  apparent  if  we  remember  that 
"actually  occupied  by  their  officers"  is  a  revision  of  the 
clause  in  the  Statute  of  1831,  "occupied  by  the  presi- 
dent," etc. 

As  we  have  contended  above,  the  occupancy  by  "  the 
president,  professors,  tutors,  and  instructors"  required  by 
the  Statute  of  1831,  and  the  occupancy  by  "  officers " 
required  by  the  Revised  Statutes  of  1835  and  the  subse- 
quent enactments,  is  the  same  kind  of  occupancy,  actual 
occupancy  by  the  party  designated,  without  qualification 
as  to  the  degree  or  completeness  of  the  occupant's  control, 
unqualified  as  to  the  right  or  title  under  which  the  occu- 
pancy is  maintained,  and  qualified  in  the  Statute  of  1835 
and  its  subsequent  revisions  only  in  the  purpose  for  which 
it  is  maintained ;  therefore,  if  we  are  right  in  our  under- 
standing that  the  decision  of  the  majority  of  this  Court 
in  the  case  of  Williams  College  v.  Williamstown  was 
based  on  the  fact  that  the  officers  in  that  case  were  held 
to  be  tenants  at  will  of  the  college  and  had  an  estate  in 
the  property,  and  were  in  sole  occupation  thereof,  we  are 
unable  to  follow  the  reasoning  of  that  decision ;  for  we 
fail  to  see  anything  in  the  Statute  of  1831  or  in  the  revi- 
sions of  1835,  1860,  1882,  and  1889  which  makes  those 
facts  decisive  in  determining  the  question  of  exemption  ; 
for,  granted  that  the  officers  are  tenants  at  will  and  in 
sole  occupation  of  the  property,  it  is  still  property  "  be- 
longing to  said  institution"  and  is  "actually  occupied  by 
the  officers  of  said  institution,"  which,  so  far  as  it  goes, 
satisfies  literally  the  words  of  the  various  statutes. 

The  fact  that  the  premises  are  so  leased  to  the  occu- 
pant as  to  give  him  an  estate  therein  may  be  an  impor- 


BRIEF  FOR  HARVARD  COLLEGE  35 

tant  consideration  in  determining  whether  the  premises 
are  used  for  the  purposes  for  which  the  institution  was 
incorporated,  and  would  be  decisive  of  that  question  in 
connection  with  such  other  facts  as  that  a  full  rent  was 
received,  that  exclusive  control  was  given  for  a  definite 
period,  not  depending  on  length  of  service  to  the  college, 
that  the  location  of  the  building  was  such  that  the  col- 
lege could  gain  no  peculiar  advantage  from  his  occupa- 
tion, or  any  other  circumstances  showing  that  the  real 
purpose  of  the  institution  was  to  acquire  profit  from  the 
use  of  the  premises.  But  no  one  of  these  facts  is  by 
itself  decisive  of  the  question  of  the  institution's  purpose, 
which  must  be  determined  from  all  the  circumstances 
surrounding  the  occupancy. 


ni 

How  Occupied  m  this  Case 

If,  however,  we  assume  that  the  law  is  now  settled  by 
the  Williams  College  case,  so  that  we  must  read  into  the 
Statute  of  1835  the  proviso,  "  Provided  it  is  not  so  occu- 
pied exclusively  by  said  officers  as  lessees  under  a  writ- 
ten or  oral  lease,"  we  shall  see  that  the  several  houses 
and  lots  in  this  case  come  well  within  such  proviso ;  be- 
cause no  one  of  the  occupants  can  be  said  to  be  a  lessee 
of  the  premises  in  which  he  lives,  or  to  have  any  exclu- 
sive estate  in  said  premises,  but  they  all  occupy  their 
respective  premises  as  licensees  merely,  and  in  part,  at 
least,  in  common  with  the  college  and  with  other  college 
officers. 

The  president  "has  no  lease  of"  17  Quincy  Street  and 
the  32,000  feet  of  land  under  and  adjoining  the  same. 
This  land  is  part  of  the  college  yard  and  is  therefore  in 
the  possession  and  occupation  of  the  college,  and  cared 
for  and  kept  in  order    by  the    college   superintendent. 


36  BRIEF  FOR  HARVARD  COLLEGE 

Assigning  32,000  feet  of  the  college  yard  as  appurtenant 
to  this  house  was  a  mere  arbitrary  proceeding  on  the 
part  of  the  assessors,  and  they  might  just  as  well  have 
made  it  60,000  or  any  other  number  of  feet,  and  the 
president  has  no  more  possession  of  this  32,000  feet  than 
he  has  of  the  rest  of  the  college  yard,  or  than  any  other 
officer  or  student  of  the  college  has.  The  house  was 
built  from  a  gift  left  to  the  college  "  in  aid  of  the  erec- 
tion of  a  dwelling-house  for  the  president  of  the  univer- 
sity and  his  successors,"  and  he  and  his  family  occupy 
the  house  "  if  he  so  chooses,  so  long  as  he  performs  the 
duties  of  the  office  of  president."  He  "  pays  no  rent  or 
compensation  for  the  use  and  occupation  of  this  house." 
Part  of  the  house  is  used  for  the  meetings  of  other  col- 
lege officers  on  college  business  and  for  the  transaction 
of  other  college  affairs.  The  house  is  repaired  inside  and 
out,  and  the  furnace  repaired  and  cleaned  by  college  offi- 
cers, and  at  the  college  expense.     (Report,  pp.  4,  5.) 

We  submit  that  these  facts  show  that  the  premises  are 
not  in  the  exclusive  control  of  the  president ;  that  they 
are  occupied  in  part  by  the  college  and  its  officers ;  that 
the  president  occupies  so  much  of  them  as  he  occupies, 
not  as  lessee  but  as  licensee  ;  that  there  is  no  relation  of 
landlord  and  tenant,  but  mere  permission  to  occupy  on 
one  side,  and  on  the  other,  no  obligation  either  to  occupy 
or  to  pay  rent.  It  is  exactly  the  kind  of  occupation  that 
is  described  in  the  case  of  Pierce  v.  Inhabitants  of  Cam- 
bridge, 2  Cush.  at  613,  as  exempting  college  property 
from  taxation :  — 

It  would  be  otherwise  if  the  building  had  been  built  for 
one  of  the  professors  or  officers  of  the  college  and  had  been 
occupied  by  the  plaintiff  with  the  permission  of  the  college 
and  without  having  any  estate  therein  or  paying  any  rent 
therefor. 

Of  No.  17  Kirkland  Street,  the  grounds  are  cared  for 
and  superintended  by  the  college.     The  lower  story  of 


BRIEF  FOR  HARVARD  COLLEGE  37 

the  house  is  assigned  by  the  college  as  a  refectory  for  the 
Foxcroft  Club,  an  association  of  students  organized  for 
the  purpose  of  obtaining  wholesome  food  at  cost.  "  The 
Club  has  had  no  lease  nor  fixed  term  of  use"  and  pays 
no  rent.  The  upper  part  of  the  building  is  used  as  a  col- 
lege dormitory  in  charge  of  a  resident  proctor ;  the  whole 
of  this  part  is  repaired,  the  rooms  kept  clean,  beds  made 
up,  etc.,  by  college  servants  (Report  p.  6).  It  is  evident 
that  the  students  are  not  lessees.  Their  relation  is  more 
that  of  lodgers  (White  v.  Maynard,  111  Mass.  250),  every 
college  being,  as  we  have  seen  above,  essentially  a  board- 
ing-school. In  Province  Laws  1765-66,  chap.  19,  as  we 
have  seen  above,  the  students'  rooms  are  called  "  lodging- 
rooms."  This  house  and  lot  are  clearly  occupied  by  the 
college  through  its  officers  and  agents.  The  other  parties 
are  there  as  licensees. 

The  houses  No.  11  Quincy  Street,  25  Quincy  Street, 
and  37  Quincy  Street  are,  like  the  president's  house,  all 
in  the  college  yard ;  therefore  the  land  about  them  which 
has  been  taxed  is  all  in  the  occupation  of  the  college. 
The  houses  are  cared  for  in  the  same  manner  as  the  pre- 
sident's house.  The  salary  of  each  occupant  "  is  fixed  at 
a  certain  sum  and  the  use  of  house."  He  pays  no  rent. 
Nos.  11  and  25  are  used  in  part  for  regular  college  exer- 
cises and  other  different  college  purposes  incident  to  the 
office  of  the  occupant  (Report  pp.  7-9).  It  is  evident  that 
neither  of  these  three  professors  has  any  lease  of  the  pre- 
mises occupied  by  him,  and  that  neither  of  them  is  in 
exclusive  control  of  the  houses  and  lots,  but  each  in  so 
far  as  he  occupies,  does  so  as  professor  or  as  professor 
and  dean ;  in  other  words,  each  occupies  as  an  officer 
of  the  college  and  either  represents  the  college  or  is  a 
licensee. 

The  occupancy  of  the  other  three  houses,  16  Quincy 
Street,  38  Quincy  Street,  and  11  Frisbie  Place,  is  essen- 
tially the  same ;  it  differs  only  in  the  fact  that  the  houses 

"642 


38  BRIEF  FOR  HARVARD  COLLEGE 

are  not  built  in  the  college  yard,  but  the  walks,  grass, 
and  turf  are  cared  for  in  just  the  same  way.  Each  house 
is  used  in  part  by  other  college  officers  for  college  busi- 
ness, and  for  various  college  purposes  incident  to  the 
official  duties  of  the  professor  who  occupies  as  professor, 
or  as  professor  and  dean,  as  the  case  may  be,  that  is  to 
say,  he  occupies  it  in  his  official  capacity  (Report,  pp.  8, 
10, 11).  As  we  have  said  in  regard  to  the  others,  neither 
pays  rent  or  is  a  lessee,  nor  has  he  exclusive  control  of 
the  premises  assigned  to  him. 

As  the  occupants  in  this  case  cannot  be  said  to  be  les- 
sees in  exclusive  control  of  these  premises,  the  question 
remains,  Are  the  several  premises  occupied  for  the  pur- 
poses for  which  the  college  was  incorporated  ?  And  this, 
as  we  have  above  contended,  is  the  sole  test. 


IV 

The  Pukpose  of  the  Occupancy 

When  premises  belonging  to  one  party  are  occupied 
by  another  by  permission  or  agreement  of  the  owner,  as 
purpose  is  an  act  of  the  mind,  and  there  are  two  minds 
involved,  there  may  strictly  be  two  purposes  in  the  occu- 
pancy, the  purpose  of  the  owner,  and  the  purpose  of  the 
occupier,  and  one  may  differ  widely  from  the  other. 
The  purpose  of  a  landlord  may  be  to  get  profit,  or  to  use 
his  property  for  public  ends,  that  of  the  tenant  to  get  a 
home,  or  a  place  to  manufacture  goods ;  the  chief  end  or 
purpose  of  one  is  but  the  means  towards  the  chief  end  or 
purpose  of  the  other.  In  this  case  it  is  the  college's  pro- 
perty that  is  to  be  taxed  or  exempted,  and  it  is  the  deal- 
ings of  the  college  with  its  property,  the  use  it  makes  of 
it,  that  is  to  decide  the  question  of  its  exemption.  "  The 
plaintiff's  purpose  in  the  use  of  its  farm  must  be  ascer- 
tained from  its  conduct  —  its  acts  and  the  declarations 


BRIEF  FOR  HARVARD  COLLEGE  39 

accompanying  them "  (Mount  Hermon  Boys'  School  v. 
Gill,  145  Mass.  at  148).  In  other  words,  it  is  the  pur- 
pose of  the  college,  in  the  use  to  which  it  puts  its  pro- 
perty, and  not  the  purpose  of  the  occupant  (except  in  so 
far  as  his  purpose  coincides  with  that  of  the  college)  that 
we  are  to  scrutinize  in  deciding  this  question.  So  this 
Court,  on  inquiring  into  the  purpose  for  which  lodging- 
houses,  let  by  a  charitable  institution  were  occupied, 
decided  that  it  was  for  the  purpose  of  profit  or  invest- 
ment. (Chapel  of  Good  Shepherd  v.  Boston,  120  Mass. 
212.) 

The  purposes  for  which  Harvard  College  was  incorpo- 
rated are  set  forth  in  its  charter  in  the  following  lan- 
guage :  — 

Whereas,  through  the  good  hand  of  God,  many  well- 
devoted  persons  have  been,  and  daily  are,  moved  and 
stirred  to  give  and  bestow  sundry  gifts,  legacies,  lands,  and 
revenues,  for  the  advancement  of  all  good  literature,  arts, 
and  sciences,  in  Harvard  College,  in  Cambridge,  in  the 
County  of  Middlesex,  and  to  the  maintenance  of  the  Presi- 
dent and  Fellows,  and  for  all  accommodations  of  buildings, 
and  all  other  necessary  provisions  that  may  conduce  to  the 
education  of  the  English  and  Indian  youth  of  this  country 
in  knowledge  and  godliness, — 

It  is  therefore  ordered  and  enacted  by  this  Court  and  the 
authority  thereof,  that  for  the  furthering  of  so  good  a  work, 
and  for  the  purposes  aforesaid,  from  henceforth  that  the 
said  College  in  Cambridge,  in  Middlesex,  in  New  England, 
shall  be  a  Corporation,  consisting  of  seven  persons,  to  wit, 
etc. 

Thus  the  main  purpose  is  "  the  advancement  of  all 
good  literature,  arts,  and  sciences  in  Harvard  College" 
and  "  the  education  of  the  .  .  .  youth  of  this  country  in 
knowledge  and  godliness."  But  this  great  purpose 
requires  for  its  accomplishment  various  instrumentalities, 
various  intermediate  steps  or  means,  and  the  acquirement 
and  use  of  each  one  of  these  instrumentalities,  the  accom- 


40  BRIEF  FOR  HARVARD   COLLEGE 

plishment  of  each  one  of  these  intermediate  steps,  becomes 
part  of  the  main  purpose  which  it  is  designed  to  assist  in 
effecting.  This  would  be  true  even  if  the  college  charter 
were  silent  as  to  the  manner  or  means  of  effecting  the 
main  purpose ;  for  the  ultimate  purpose  characterizes 
each  intermediate  step,  and  thus  the  necessary  means 
become  part  of  the  purpose. 

This  is  exactly  what  the  college  charter  declares,  for 
among  the  "aforesaid  purposes"  it  enumerates  "  the 
maintenance  of  the  President  and  Fellows,  and  for  all 
accommodations  of  buildings  and  all  other  necessary  provisions" 
After  this  general  declaration  of  the  purposes  for  which 
the  college  is  incorporated,  it  particularizes  some  of  the 
"  necessary  provisions, "  of  which  the  following  deserve 
particular  attention  :  — 

And  the  President  and  Fellows,  or  the  major  part  of 
them,  from  time  to  time,  may  meet  and  choose  such  officers 
and  servants  for  the  College,  and  make  such  allowance  to 
them,  and  them  also  to  remove,  and  after  death  or  removal, 
to  choose  such  others,  and  to  make  from  time  to  time  such 
orders  and  by-laws  for  the  better  ordering  and  carrying  on 
the  work  of  the  College,  as  they  shall  think  jit.  .  .  . 

And  for  the  better  ordering  of  the  government  of  said 
College  and  Corporation :  Be  it  enacted,  etc.  .  .  .  And 
that  all  the  aforesaid  transactions  shall  tend  to  and  for  the 
use  and  behoof  of  the  President,  Fellows,  scholars,  and 
officers  of  the  said  College,  and  for  all  accommodations  of 
buildings,  books,  and  all  other  necessary  provisions  and 
furnitures  as  may  be  for  the  advancement  and  education  of 
youth  in  all  manner  of  good  literature,  arts,  and  sciences. 

For  two  centuries  and  a  half  this  charter  of  1650  has 
remained  to  this  day  "  the  venerable  source  of  all  col- 
legiate authority."  And  notwithstanding  the  great  alter- 
ations in  the  mode  of  life  of  the  community,  the  great 
enlargement  of  the  range,  and  improvements  in  the 
methods,  of  education,  the  enormous  increase  in  the  num- 
ber of  students  and  instructors,  and  the  changes  which 


BRIEF  FOR  HARVARD  COLLEGE  41 

two  hundred  and  fifty  years  have  wrought  in  the  social 
life  of  the  college,  it  has  proved  to  be  a  sufficient  source, 
mainly  because  of  the  wise  elasticity  given  to  it  by  its 
framers  in  making  its  corporate  purposes  include  all  neces- 
sary provisions  and  making  its  president  and  fellows  the 
sole  judge  of  what  is  necessary  "  for  the  better  ordering 
and  carrying  on  the  work  of  the  college  ;  "  and  never  yet 
has  this  Court  sought  to  narrow  the  charter  purposes  of 
the  incorporation,  or  to  limit  the  charter  authority  of  its 
government  in  deciding  what  are  "  necessary  provisions" 
for  accomplishing  those  purposes. 

On  the  contrary,  in  the  case  of  the  Massachusetts  Gen- 
eral Hospital  v.  Somerville,  101  Mass.  319,  this  Court  in 
the  case  of  an  institution  whose  charter  is  less  explicit  in 
granting  a  like  discretion  to  the  governing  board,  recog- 
nized and  declared  the  doctrine  for  which  we  are  here 
contending,  in  the  following  language  :  — 

Wells,  J.  The  plaintiff  is  a  benevolent  institution, 
incorporated  within  this  Commonwealth.  By  Gen.  Sts. 
c.  11,  par.  5,  cl.  3,  "  the  real  estate  belonging  to  such  institu- 
tions, occupied  by  them  or  their  officers  for  the  purposes  for 
which  they  were  incorporated,"  is  exempted  from  taxation. 

The  statute  contains  no  limitation  of  the  amount  of  real 
estate  that  may  be  thus  held  exempt  from  taxation ;  and 
we  know  of  no  authority  under  which,  or  rule  by  which,  the 
Court  can  affix  any  such  limitation.  The  only  condition 
upon  which  the  exemption  depends  is  the  proviso  as  to  the 
purposes  for  which  the  real  estate  is  occupied. 

In  construing  and  applying  this  proviso,  the  Court  cannot 
restrict  it  to  the  limit  of  necessity.  The  statute  does  not 
indicate  such  an  intention  on  the  part  of  the  Legislature  ; 
and  we  do  not  think  that  any  considerations  of  public 
policy  require  us  to  confine  the  exemption  to  narrower  limits 
than  the  terms  of  the  statute  fairly  imply.  What  lands  are 
reasonably  required,  and  what  uses  of  land  will  promote  the 
purposes  for  which  the  institution  was  incorporated,  must 
be  determined  by  its  own  officers.  The  statute  leaves  it  to 
be  so  determined,  by  omitting  to  provide  any  other  mode. 


42  BRIEF  FOR  HARVARD  COLLEGE 

In  the  absence  of  anything  to  show  abuse,  or  otherwise  to 
impeach  their  determination,  it  is  sufficient  that  the  lands 
are  intended  for,  and  in  fact  appropriated  to,  those  purposes. 
.  .  .  The  presumption  is  in  favor  of  their  judgment,  and  it 
requires  more  than  mere  difference  of  opinion  upon  a  mat- 
ter of  opinion  especially  confided  to  them  to  overcome  that 
presumption. 

We  submit  furthermore,  that  every  piece  of  real  pro- 
perty which  is  put  to  a  legitimate  use  by  the  college,  or  to 
a  use  authorized  by  its  charter  and  statutes,  must  be  used 
for  the  purposes  for  which  the  college  was  incorporated  or 
for  the  purpose  of  getting  an  income  from  it ;  and  every 
piece  of  real  estate  owned  by  the  college  must  be  held 
either  for  the  purposes  for  which  it  was  incorporated,  or 
for  the  purpose  of  investment,  or  it  may  be  held  tempo- 
rarily unused  or  unoccupied,  awaiting  its  later  appropria- 
tion to  one  or  the  other  of  these  purposes.  The  college 
has  a  right  to  invest  its  funds  in  real  estate  to  an  unlimited 
extent  for  the  purpose  of  producing  an  income  with  which 
to  carry  on  the  work  of  the  college,  or  to  carry  out  the 
purposes  for  which  it  was  incorporated ;  but  it  has  no 
right,  for  instance,  to  run  a  hospital  exclusively  for  the 
general  public.  It  has  a  right,  however,  to  run  a  hospital 
for  its  students,  if  its  governing  body  decide  that  to  be 
necessary  for  their  well-being.  It  has  no  right  to  main- 
tain a  gymnasium,  a  playground,  a  boat-house,  a  church,  an 
art  museum,  or  assembly  halls  for  the  exclusive  use  of  the 
public,  but  all  of  these  institutions  in  Cambridge  for  the 
use  of  the  students  and  officers  of  the  college  are  clearly 
authorized,  though  the  college  derives  no  income  from 
them,  because  although  some  of  them  probably  never 
entered  into  the  minds  of  the  founders  of  the  college, 
they  are  considered  necessary  in  every  well-regulated  col- 
lege, because  of  the  great  changes  that  time  has  wrought 
in  the  scope  and  methods  of  an  educational  institution ; 
and   therefore   they  come   well   within   the  "  necessary 


BRIEF  FOR  HARVARD  COLLEGE  43 

provisions"  of  the  college  charter.  We  take  it  to  be 
clear,  then,  that  every  piece  of  real  estate  of  the  college 
that  is  legally  put  to  any  use,  is  used  either  for  invest- 
ment or  for  the  purposes  for  which  the  college  was  incor- 
porated. And  to  determine  whether  a  piece  of  property 
is  exempt  from  taxation,  the  inquiry  is,  for  which  of  these 
purposes  is  it  used,  the  purpose  of  investment,  or  for  col- 
lege purposes  ?  If  for  investment,  this  Court  has  held  it 
is  taxable  ;  if  for  college  purposes,  it  is  not  taxable. 

Before  the  Williams  College  case  this  was  the  test  and 
the  form  of  inquiry  employed  and  announced  by  this 
Court.  Thus  in  Wesley  an  Academy  v.  Wilbraham,  99 
Mass.  599,  the  question  being  whether  a  farm  used  by 
an  educational  institution  solely  to  raise  produce  for  a 
boarding-house  kept  by  the  institution,  to  supply  board 
to  the  students  at  its  actual  cost,  was  taxable,  Chapman, 
J.,  says :  — 

It  does  not  appear  that  any  profit  is  made  by  the  plain- 
tiffs out  of  what  is  furnished  to  the  boarders;  but  an 
account  is  kept,  and  the  cost  of  the  production  is  reckoned, 
and  enters  into  the  price  of  board.  The  object  of  the 
plaintiffs  is  to  furnish  the  students  with  cheap  board  ;  and 
this  is  one  method  of  cheapening  it,  the  whole  benefit  of 
the  arrangement  being  allowed  to  them.  So  far  as  these 
students  are  concerned,  it  is  a  boarding-school,  and  in 
respect  to  board,  as  well  as  school-rooms,  apparatus,  and 
tuition,  the  ultimate  purpose  is  to  furnish  cheap  education. 
If  the  boarding-house  and  farm  had  been  rented  to  a 
boarding-house  keeper,  the  case  would  have  been  like  that 
above  cited.  It  would  be  the  same  if  the  plaintiffs  carried 
on  their  farm  and  sold  the  produce  at  its  market  price  for 
the  use  of  the  students,  in  order  to  make  a  profit  as  farmers 
or  as  dealers  in  milk  and  vegetables.  But  as  it  is  managed, 
the  object  not  being  to  make  a  profit  to  the  funds  of  the 
institution,  but  to  benefit  the  students,  it  is  as  really  used 
for  the  purpose  for  which  the  institution  was  incorporated 
as  the  buildings  and  school  apparatus. 

So  in  Massachusetts  General  Hospital  v.  Somerville  the 


44  BRIEF  FOR  HARVARD  COLLEGE 

Court  gives  the  following  reason  for  holding  that  pro- 
perty would  be  exempt,  although  rent  was  paid  by  the 
occupant  and  received  by  the  institution,  saying  that  the 
exemption  would  attach  :  — 

If  .  .  .  the  rent  was  paid  and  received  in  the  manner 
stated  as  a  convenient  mode  of  adjusting  the  compensation 
of  the  person  so  employed,  and  not  as  the  income  or  fruit 
of  an  estate  granted.  .  .  .  By  the  ruling  of  the  Court 
below,  as  we  understand  it,  the  question  was  made  to  turn 
upon  the  single  fact  of  the  payment  and  receipt  of  rent. 
This  we  think  was  erroneous. 

So  the  bare  fact  that  rent  was  paid  and  received  does 
not  prove  that  the  property  is  used  for  investment,  nor 
is  it  inconsistent  with  the  fact  that  it  is  used  for  the  pur- 
poses for  which  the  institution  was  incorporated. 

In  the  case  of  Chapel  of  the  Good  Shepherd  v.  Boston, 
as  we  have  seen  above,  the  lodging-houses  were  held  not 
to  be  exempt  because  the  statute  "  did  not  make  the  pur- 
pose of  investment  and  profit,  for  which  these  rooms  were 
improved  and  used,  a  charitable  or  religious  purpose  in 
any  legal  respect." 

In  Mount  Hermon  Boys'  School  v.  Gill,  145  Mass.  139, 
where  it  was  the  question  whether  the  statute  exempted 
from  taxation  a  farm  and  buildings  thereon,  consisting  of 
two  farm-houses,  a  wood-house,  two  barns,  two  sheds,  two 
tobacco-barns,  and  a  milk-house,  belonging  to  a  school 
incorporated  under  Public  Statutes,  chap.  115,  for  the 
"education  of  boys,"  and  worked  mainly  by  the  scholars, 
the  produce  being  used  to  board  the  scholars  and  the 
surplus  sold  at  market  rates,  the  same  test  was  applied, 
namely  :  is  the  property  used  for  investment  or  not  ? 

Knowlton,  J.  Was  this  farm  practically  used  to  teach 
the  boys  agriculture,  and  give  them  physical  training,  and 
furnish  them  manual  labor  as  a  part  of  their  education  ? 
Was  it  used  to  furnish  supplies  directly  to  this  boarding- 
school,  and  so  lessen  the  cost  of  education  there  ?     Or  was 


BRIEF  FOR  HARVARD  COLLEGE  45 

it,  on  the  other  hand,  used  to  produce  revenue,  and  earn 
income  which  might  afterward  be  expended  for  the  school  ? 
It  seems  to  us  that  the  farm  and  the  property  upon  it  were 
used  in  the  legitimate  management  of  the  school,  directly 
to  accomplish  its  purposes,  and  not  to  obtain  money  for 
subsequent  use  in  accomplishing  them.  The  fact  that 
products  were  sold  is  a  circumstance  important  only  so  far 
as  it  characterizes  the  use.  We  think  that  the  sales  were 
merely  incidental  to  a  use  for  the  purposes  of  the  institu- 
tion. 

From  this  we  see  that  it  is  not  inconsistent  with  the 
right  to  exemption  that  some  income  or  pecuniary  profit 
is  incidentally  derived  from  the  use  of  the  property,  if 
the  main  or  immediate  purpose  of  the  institution  is  to  use 
it  for  the  purpose  for  which  it  was  incorporated. 

In  the  case  of  Salem  Lyceum  v.  Salem,  154  Mass.  15, 
where  the  Court  held  the  main  purpose  to  be  to  get  a 
profit,  this  principle  was  declared  in  the  following  lan- 
guage :  — 

W.  Allen,  J.  The  exemption  from  taxation  does  not 
extend  to  estate  owned  by  the  plaintiff,  and  allowed  by  it 
to  be  occupied  by  others,  with  the  purpose  of  deriving 
income  to  expend  in  diffusing  knowledge  and  promoting 
intellectual  improvement  in  Salem.  Those  are  the  pur- 
poses for  which  the  estate  must  be  occupied  by  the  plaintiff 
itself  to  exempt  it  from  taxation.  If  the  principal  occupa- 
tion is  by  the  plaintiff  for  those  purposes,  occasional  and 
incidental  use  for  other  purposes  might  not  render  it  liable 
to  taxation ;  but  when  the  substantial  use  and  occupation 
is  for  the  purpose  of  deriving  income  from  it,  it  makes  no 
difference  if  that  income  is  used  to  provide  a  course  of  lec- 
tures once  a  year  in  the  hall. 

The  decisions  of  the  Court  in  the  two  cases  of  New 
England  Hospital  v.  Boston,  113  Mass.  518,  and  Trinity 
Church,  118  Mass.  164,  are  also  in  accordance  with  this 
rule,  though  the  rule  is  not  stated  in  the  opinions.  In 
the  latter  case  a  few  piles  had  been  driven  into  the 
ground  preparatory  to  erecting  a  house  of  religious  wor- 


46  BRIEF  FOR  HARVARD  COLLEGE 

ship ;  in  the  former,  an  architect  had  been  employed  to 
draw  plans  for  a  hospital,  and  had  viewed  the  ground 
preparatory  to  building;  in  both  cases,  the  Court  held 
that  the  lands  were  occupied  for  the  purposes  for  which 
the  institutions  were  incorporated. 

The  next  case  in  which  this  question  arose  is  that  of 
Williams  College  v.  Williamstown,  167  Mass.  505,  and 
here  it  seems  to  us  we  have  an  entire  departure  from  the 
rule  laid  down  in  all  prior  cases  by  this  Court  for  ascer- 
taining whether  or  not  the  property  in  question  is  occu- 
pied for  the  purpose  for  which  the  institution  was  founded. 
We  doubt  whether  it  is  so  much  the  decision  in  that  case 
as  it  is  the  reasons  given  in  the  opinion  of  the  majority  of 
the  Court  that  has  caused  the  assessors  of  almost  every 
town  in  the  Commonwealth  which  contains  a  literary, 
benevolent,  charitable,  or  scientific  institution,  to  change 
the  settled  policy  of  years  by  assessing  for  the  first  time 
in  their  history  every  piece  of  real  estate  belonging  to 
those  institutions,  that  is  not  used  as  a  direct  instru- 
ment or  as  an  indispensable  requisite  for  educating  the 
young,  or  curing  the  sick,  or  bestowing  charity  upon  the 
poor.  And  we  have  great  doubt  whether  this  Court  ever 
intended  that  the  decision  in  that  case  should  serve  as  a 
ground  for  changing  the  settled  policy  of  the  Common- 
wealth and  of  the  cities  and  towns  for  over  sixty  years. 
But  if  we  bear  in  mind  that  heretofore  the  test  applied 
by  the  Court  was  whether  or  not  the  property  was  used 
as  an  investment  and  that  the  mere  payment  and  receipt 
of  rent  for  the  property,  or  the  receipt  of  some  pecuniary 
profit  therefrom,  was  not  necessarily  decisive  of  that 
question,  we  must  admit  that  there  was  an  entirely  dif- 
ferent rule  announced  in  the  following  language  of  the 
Court  in  the  Williams  College  case  :  — 

The  most  important  contention  of  the  respondents  is  that 
these  occupants  were  tenants  at  will  of  the  estates  respec- 
tively, and  that  the  occupation  was  for  the  purpose  of  a 


BRIEF  FOR  HARVARD  COLLEGE  47 

residence,  and  not  for  the  purposes  for  which  the  college 
was  incorporated.  A  majority  of  the  Court  are  of  opinion 
that  this  is  the  true  view  to  take  of  the  facts  found  by  the 
commissioner,  and  of  the  evidence.  .  .  . 

In  the  present  case  the  occupants  were  each  in  the  sole 
occupation  of  the  premises,  and  the  occupation  was  for 
strictly  private  purposes,  and  the  control  of  the  premises 
during  the  occupation  was  with  them.  That  the  rent  was 
paid  by  a  deduction  made  by  the  college  monthly  from 
the  salary,  instead  of  being  paid  directly  to  the  college  is 
immaterial. 

It  may  be  that  the  Court  was  of  opinion  that  Williams 
College  had  let  these  houses  to  its  officials  mainly  for  the 
rent  it  was  getting  for  them,  as  an  investment  of  its  sur- 
plus funds,  but  it  has  not  so  stated  and  we  doubt  whether 
the  facts  would  justify  such  an  inference.  We  think  it 
would  be  in  accordance  with  the  decision,  and  reasoning, 
in  Massachusetts  General  Hospital  v.  Somerville  to  hold 
that  these  houses  were  not  occupied  for  the  purpose  of 
investment. 

In  holding  that  the  occupation  was  for  the  purpose  of 
a  residence  "  a  strictly  private  purpose "  and  therefore 
not  for  the  purpose  for  which  the  college  was  incorpo- 
rated, we  contend  that  the  Court  has  in  the  first  place 
ignored  an  incontestable  fact  of  which  it  ought  to  take 
judicial  notice,  because  it  is  part  of  the  definition  of  the 
word  "  college,"  and  is  also  a  part  of  the  history  of  this 
country  and  of  England ;  namely,  that  the  providing  of  resi- 
dences for  its  instructors  and  students  is  within  the  scope 
of  the  purposes  of  the  college.  It  has  been  the  practice 
of  every  one  of  the  great  colleges  from  the  time  of  their 
foundation,  as  we  have  attempted  to  show  above ;  and 
there  are  few,  if  any,  colleges  in  this  country  or  any  other 
country,  where  it  is  not  the  practice  at  the  present  time, 
which  of  itself  goes  to  show  that  it  has  proved  a  wise  and 
salutary  practice,  if  not  one  absolutely  necessary  for  the 
proper  discipline  and  supervision  of  the  students. 


48  BRIEF  FOR  HARVARD  COLLEGE 

In  the  second  place,  it  has  ignored  the  rule  of  construc- 
tion announced  in  the  case  of  Massachusetts  General 
Hospital  v.  Somerville  which  recognized  the  right  of  the 
governing  body  of  the  institution  to  decide  what  uses 
of  its  property  will  promote  the  purposes  for  which  the 
institution  was  incorporated. 

In  construing  and  applying  this  proviso,  the  Court  can- 
not restrict  it  to  the  limit  of  necessity.  .  .  .  What  lands 
are  reasonably  required  and  what  uses  of  land  will  promote 
the  purposes  for  which  the  institution  was  incorporated, 
must  be  determined  by  its  own  officers. 

See  Peirce  v.  Boston  &  Lowell  R.  R.  Co.,  141  Mass.  481. 

In  the  third  place,  in  saying  that  the  buildings  were 
occupied  for  the  purpose  of  residences,  it  is  evident  that 
the  Court  has  in  mind  the  purpose  of  the  occupants  and 
not  of  the  college,  and  they  have  therefore  departed  from 
the  rule  founded  on  sound  reason  and  the  declaration  of 
this  Court,  as  we  have  already  seen,  that  it  is  the  institu- 
tion's conduct  in  regard  to  its  own  property,  its  own  acts, 
and  the  declarations  accompanying  them  showing  its  pur- 
pose that  render  its  property  taxable  or  untaxable.  The 
purpose  of  the  occupant  may  be  to  acquire  a  residence, 
but  we  submit  that  his  purpose  cannot  determine  the 
taxability  of  the  institution's  property.  The  real  ques- 
tion is,  What  is  the  purpose  in  the  mind  of  the  gov- 
erning body  of  the  institution  in  having  the  property 
occupied  in  that  particular  way ;  namely,  what  is  the 
purpose  of  its  occupation  as  a  residence  by  that  particular 
officer  ?  If  it  is  put  by  the  college  to  a  legitimate  use,  or 
one  authorized  by  its  charter,  that  use  must  be  either  for 
the  purpose  of  investment  or  for  the  purpose  for  which  it 
was  incorporated  as  we  have  seen  above ;  it  must  be  for 
the  rent  it  gets  from  it,  or  for  the  more  efficient  service 
it  will  get  from  its  officer  by  putting  him  in  such  close 
relation  to  the  institution  and  students  that  he  will  be 
the  better  able  to  perform  the  services  which  he  has  to 


BRIEF  FOR  HARVARD  COLLEGE  49 

render  to  the  college,  or  for  some  other  advantage  to  its 
educational  ends  which  it  may  get  from  this  form  of 
occupation. 

To  say  that  property  is  occupied  for  the  purpose  of  a 
residence  is  to  describe  the  kind  of  occupancy  rather  than 
the  purpose  of  it.  If  we  should  apply  the  reasoning  of  the 
Williams  College  case  to  the  other  cases  decided  by  this 
Court,  we  should  have  to  say  in  Wesleyan  Academy  v. 
Wilbraham,  that  the  property  was  occupied  for  the  pur- 
pose of  a  farm;  in  Massachusetts  General  Hospital  v. 
Somerville,  that  the  land  was  occupied  for  the  purpose  of 
keeping  it  vacant,  and  the  house  for  the  purpose  of  a 
residence ;  in  New  England  Hospital  v.  Boston,  and  Trinity 
Church  v.  Boston,  that  the  property  was  used  for  the 
purpose  of  building  upon  it  at  some  future  time ;  in  Mt. 
Hermon  Boys'  School  v.  Gill,  that  the  land  was  used  for 
the  purpose  of  a  farm  and  the  houses  for  the  purpose  of 
residences,  for  storing  wood,  tobacco,  and  other  farm 
products  and  for  a  dairy,  all  strictly  private  purposes;  and 
as  none  of  these  purposes  come  within  the  purposes  for 
which  any  of  these  institutions  were  incorporated,  that 
the  several  properties  were  taxable.  But  the  Court  held 
that  the  properties  were  exempt  because  the  questions 
which  they  asked  and  answered  were  :  For  what  purpose 
is  this  land  used  by  the  institution  as  a  farm,  that  land 
held  vacant,  and  these  others  occupied  for  building? 
For  what  purpose  is  this  building  used  by  the  corpora- 
tion as  a  residence,  that  used  as  a  barn  or  shed,  and  this 
other  for  a  dairy  ?  So,  therefore,  we  repeat,  that  the 
question  to  be  answered  in  the  Williams  College  case  was, 
for  what  purpose  were  these  houses  used  by  the  college 
as  residences  ? 

This  case,  however,  is  clearly  distinguishable  from  the 
case  of  Williams  College  in  several  important  particulars, 
some  of  which  we  have  already  pointed  out.  So  that 
even  if  we  accept  the  reasoning  and  the  decision  of  the 


50  BRIEF  FOR  HARVARD  COLLEGE 

Williams  College  case,  we  can  still  claim  with  confidence 
that  the  several  houses  and  lots  in  this  case  are  exempt 
under  the  statute.    . 

As  to  the  house  and  lot  No.  17  Kirkland  Street,  occu- 
pied as  a  students'  dormitory  and  a  dining-room,  no  such 
occupation  was  in  question  in  the  Williams  College  case, 
but  the  Court  there  admits  that  "  if  a  professor  lived  in 
rooms  in  the  dormitory  of  a  college  which  remained  under 
the  general  control  of  the  college,  and  a  deduction  of  a 
certain  sum  of  money  on  account  of  such  occupation  was 
made  from  his  salary,"  the  property  would  be  exempt. 
We  have  already  shown  that  this  building  and  lot  are 
under  the  general  control  of  the  college,  and  that  none 
of  the  occupants  can  be  described  as  tenants  or  lessees  of 
these  premises.  We  have  seen  that  the  first  building  of 
Harvard  College,  finished  in  1639,  contained  a  dormitory 
or  rooms  for  students  and  instructors,  and  a  dining-room, 
and  that  dining-rooms  and  dormitories  have  ever  since 
been  maintained  by  the  college,  and  so  far  as  we  know 
there  never  was  a  college  without  them.  This  is  the  first 
attempt  ever  made  in  this  Commonwealth  to  tax  college 
dormitories  or  dining-rooms.  Under  a  substantially  simi- 
lar statute  in  Connecticut,  an  attempt  was  made  at  New 
Haven  to  tax  both.  The  Supreme  Court  of  Connecticut 
in  a  very  learned  opinion  has  held  that  dormitories  and 
dining-halls  are  exempt. 

Yale  University  v.  Town  of  New  Haven,  71  Conn.  316. 

In  view  of  the  intimation  above  quoted  from  the  Wil- 
liams College  case,  as  to  college  dormitories,  and  the  fact 
that  this  Court  has  already  held  that  a  farm  worked  by 
an  educational  institution  for  the  purpose  of  furnishing 
products  to  be  consumed  in  the  students'  dining-room  is 
exempt  (Wesleyan  Academy^.  Wilbraham,  99  Mass.  599; 
Mount  Hermon  Boys'  School  v.  Gill,  145  Mass.  139),  we 
deem  it  unnecessary  to  argue  further  in  support  of  the 
exemption  of  17  Kirkland  Street. 


BRIEF  FOR  HARVARD  COLLEGE  51 

We  have  seen  that  the  second  building  erected  by  Har- 
vard College  was  the  president's  house.  This  was  erected 
from  funds  furnished  the  college  by  the  Colony  of  Massa- 
chusetts Bay  at  a  time  when  neither  the  college  nor  the 
Colony  had  any  surplus  funds  or  property  to  invest  for 
the  purpose  of  an  income.  We  have  also  seen  that  the 
government  of  the  province,  at  times  when  the  college  had 
no  means  of  its  own  to  devote  to  such  purposes,  appointed 
committees  to  procure  or  hire  a  suitable  place  for  a  resi- 
dence for  the  president  and  his  family,  and  appropriated 
so  large  a  sum  as  £1000  to  build  Wadsworth  House. 
As  to  No.  17  Quincy  Street,  the  present  official  residence 
of  the  president,  we  have  seen  that  it  was  built  from 
funds  specially  left  to  the  college  for  that  purpose,  and 
therefore  the  college  has  no  right  to  let  it  to  any  one  else. 
Unlike  any  of  the  houses  in  the  Williams  College  case, 
the  president,  as  we  have  stated  above,  has  no  lease  of 
said  house  and  pays  no  rent  therefor ;  he  is  not  in  sole 
occupation,  because  the  land  about  it  is  in  the  occupation 
of  the  college,  and  part  of  the  house  is  at  times  occupied 
by  other  college  officers  in  carrying  on  the  work  of  the 
college,  and  is  used  by  the  president  while  attending  to 
various  college  duties.  College  servants  have  a  right 
to  enter  upon  the  grounds  assessed  with  this  house  and 
to  repair  the  house.  The  president  occupies  the  house 
only  so  long  as  he  performs  the  duty  of  the  office  of  presi- 
dent ;  he  therefore  occupies  it  solely  by  reason  of  service, 
and  therefore,  as  laid  down  in  Massachusetts  General 
Hospital  v.  Somerville,  101  Mass.  at  326,  he  occupies  it 
for  the  purposes  for  which  the  college  was  incorporated. 

The  occupants  of  25  and  38  Quincy  Street  and  11 
Frisbie  Place  are  deans  as  well  as  professors.  If  the 
dwelling-house  in  which  the  president  lives  should  be  held 
to  be  exempt  because  it  is  essentially  a  college  purpose 
to  have  and  furnish  a  house  for  the  president,  then  as 
the  deans  "  are  charged  each  with  a  portion  of  the  admin- 


52  BRIEF  FOR  HARVARD  COLLEGE 

istrative  duties  which  formerly  devolved  exclusively  on 
the  president"  (Report,  p.  11),  it  is  equally  a  legitimate 
college  purpose  to  furnish  official  residences  for  them. 

In  other  respects  the  six  houses  occupied  by  the  pro- 
fessors need  not  be  considered  separately,  as  the  facts 
and  circumstances  in  regard  to  each  are  substantially  the 
same.  The  occupation  of  these  houses  and  lots  differs 
from  that  of  the  houses  in  the  Williams  College  case,  in 
that  none  of  the  occupants  are  in  sole  occupation,  the 
college,  other  college  officers,  or  the  students  occupying 
parts  of  each  for  some  time  each  day. 

We  have  pointed  out  already  that  these  professors  can- 
not be  called  tenants  or  lessees,  as  they  have  no  lease  of 
their  premises ;  but  even  if  they  were  tenants  at  will, 
they  still  pay  no  rent  and  occupy  the  premises  solely  by 
reason  of  the  service  they  render,  and  the  property  is 
therefore  occupied  by  them  officially  and  for  the  pur- 
poses for  which  the  college  was  incorporated.  The  fol- 
lowing facts  are  agreed  to  in  regard  to  each  :  "  When 
his  salary  is  voted  in  the  fall  of  each  year,  it  is  fixed  at  a 
certain  sum  '  and  the  use  of  house  $900  '  (or  other  sum), 
otherwise  Professor  .  .  .  pays  no  rent  and  has  no  other 
agreement  for  his  use  and  occupation  of  said  house,  but 
uses  it  as  said  professor  and  dean  "  (in  cases  where  he  is 
dean  as  well  as  professor). 

It  will  be  noticed  that  this  is  quite  a  different  arrange- 
ment in  legal  effect  from  that  in  the  Williams  College 
case.  There  the  salaries  of  the  professors  were  fixed  at 
a  certain  sum,  the  value  of  the  occupation  was  fixed,  and 
they  were  paid  monthly  in  cash  one-twelfth  of  such  salary 
less  one-twelfth  of  the  value  of  the  occupation  (167  Mass. 
at  507).  In  that  case  we  have  an  obligation  on  the  part 
of  the  college  to  pay  a  fixed  sum  as  salary  for  services 
rendered,  and  on  the  part  of  the  officers  an  agreement  to 
pay  a  fixed  amount  as  rent  or  compensation  for  the  use 
of  the  house.     The  college  paid  a  salary,  and  gave  the 


BRIEF  FOR  HARVARD  COLLEGE  53 

use  of  a  house  ;  the  officers  rendered  service  for  the 
salary,  and  paid  rent  for  the  house.  In  our  case  there  is 
no  rent  paid;  the  college  pays  a  salary,  and  gives  the 
use  of  a  house  valued  at  a  certain  amount  in  return  for 
services  rendered,  as  it  did  with  the  Dunster  house ;  the 
services  rendered  are  therefore  paid  for  in  part  in  cash, 
and  in  part  by  allowing  the  officer  to  use  the  house.  The 
house  is  occupied  by  reason  of  the  services  rendered,  and 
not  by  reason  of  rent.  There  can  be  no  doubt  that  the 
college  has  a  right  to  devote  its  real  estate  as  well  as  its 
cash  to  such  use  ;  the  college  charter  authorizes  the  presi- 
dent and  fellows  "  to  make  such  allowance  to  them,"  the 
officers,  "  as  they  shall  think  fit."  Now  it  cannot  be 
denied  that  the  money  which  the  college  pays  as  salary 
to  its  professor  is  used  for  the  purpose  for  which  it  was 
incorporated.  It  is  just  as  certain  that  the  real  estate 
which  the  college  "  allows"  him  in  part  payment  for  his 
services  is  devoted  to  the  same  purpose. 

It  accords  with  our  contention  that  the  Supreme  Court 
of  Connecticut  within  a  year  has  decided  that  two  houses 
furnished  by  Yale  College  for  the  officers  of  its  observa- 
tory are  exempt  from  taxation,  under  a  statute  exempt- 
ing "  buildings  or  portions  of  buildings  exclusively  occu- 
pied as  colleges." 

Yale  University  v.  New  Haven,  71  Conn.  316. 

V 

Practical  and  Legislative  Construction 

We  have  thus  far  seen  what  the  judicial  interpretations 
of  the  statute  under  discussion  have  been  up  to  the  pre- 
sent time,  but  we  find  in  the  practice  of  the  cities  and 
towns  continued  for  more  than  sixty  years,  and  in  the 
three  enactments  since  the  Revised  Statutes  of  the  statute 
in  question  by  the  General  Court  of  the  Commonwealth, 
both  a  practical  and  a  legislative  construction  of  that 


54  BRIEF  FOR  HARVARD  COLLEGE 

statute  which  deserve  careful  consideration,  for  such  inter- 
pretations have  always  been  given  the  greatest  weight 
by  this  Court. 

A  coteniporaneous  is  generally  the  best  construction  of 
a  statute.  It  gives  the  sense  of  a  community,  of  the  terms 
made  use  of  by  a  Legislature.  If  there  is  ambiguity  in  the 
language,  the  understanding  and  application  of  it,  when 
the  statute  first  comes  into  operation,  sanctioned  by  long 
acquiescence  on  the  part  of  the  Legislature  and  judicial 
tribunals,  is  the  strongest  evidence  that  it  has  been  rightly 
explained  in  practice.  A  construction  under  such  circum- 
stances becomes  established  law ;  and  after  it  has  been 
acted  upon  for  a  century  nothing  but  legislative  power  can 
constitutionally  effect  a  change. 

Parker,  C.  J.     Packard  v.  Richardson,  17  Mass.  at  144. 

On  these  legislative  and  judicial  practical  expositions  of 
the  declaration  in  favor  of  trials  in  the  vicinity  we  might 
repose  with  confidence,  for  contemporaneous  and  continued 
constructions  of  an  instrument,  whether  by  express  judicial 
decisions  or  uniform  practice,  are  admitted  to  be  a  legiti- 
mate ground  of  interpretation. 

Parker,  C.  J.     Commonwealth  v.  Parker,  2  Pick,  at  557. 

Gray,  C.  J.,  in  commenting  upon  the  reenactments  of 
the  Statute  of  1817,  chap.  142,  in  the  Revised  and  the 
General  Statutes,  says  :  — 

They  have  been  constantly  applied  in  practice,  and  re- 
peatedly expounded  by  this  Court,  without  a  doubt  of  their 
validity  being  suggested,  for  nearly  sixty  years.  After  so 
long  a  practical  construction  and  acquiescence  by  the  Legis- 
lature, by  the  Courts,  and  by  all  parties  to  judicial  proceed- 
ings, it  would  require  a  very  clear  case  to  warrant  the  court 
in  setting  them  aside  as  unconstitutional. 

Holmes  v.  Hunt,  122  Mass.  at  516. 
These  houses,  or  houses  similarly  occupied,  have  be- 
longed to  Harvard  College  ever  since  the  passage  of  the 
Revised  Statutes,  but  never  till  1897  has  the  city  of  Cam- 
bridge made  any  attempt  to  tax  them ;  they  have  for 


BRIEF  FOR  HARVARD  COLLEGE  55 

more  than  sixty  years  been  considered  and  treated  as 
exempted  property  under  the  exempting  clause  of  the 
Revised  Statutes  and  the  subsequent  enactments.  And 
not  till  1895  did  the  assessors  of  Williamstown  or  any 
other  city  or  town,  with  the  sanction  of  this  Court,  tax 
property  occupied  as  the  Williams  College  houses  were 
occupied.  If  this  course  were  due  to  a  misconstruction 
of  the  statute,  if  it  were  not  in  accordance  with  the  real 
legislative  intent,  it  is  hardly  possible  that  the  Legislature 
would  not  have  corrected  the  error  by  an  amendment 
declaring  the  true  intent  and  meaning  of  the  act.  But 
instead  of  any  such  amendment,  we  find  the  General 
Court,  in  face  of  this  practical  interpretation  put  upon  its 
act,  reenacting  the  same  statute  in  the  same  terms  in 
1860,  in  1881,  and  in  1889.  We  submit  that  these  re- 
enactments  amount  to  legislative  declarations  that  the 
practical  construction  of  this  statute  by  the  cities  and 
towns  is  the  true  construction,  and  only  an  act  of  the 
Legislature  can  change  it. 

But  before  the  General  Court  shall  change  this  con- 
struction of  the  exempting  statute,  or  narrow  the  scope 
of  the  college,  or  deny  it  that  encouragement  which  has 
at  all  times  been  extended  to  it,  the  Legislature  will  have 
become  unmindful  of  the  sacred  duty  imposed  upon  it 
by  the  Constitution  of  the  Commonwealth,  which  in  the 
same  breath  created  the  General  Court  and  gave  renewed 
life  to  Harvard  College,  for  not  only  does  the  Constitu- 
tion of  Massachusetts  confirm  to  Harvard  College  all  its 
franchises,  property,  and  immunities,  but  it  admonishes 
all  future  legislatures  and  magistrates  to  cherish  all  semi- 
naries, and  especially  the  university  at  Cambridge,  in  the 
following  language  :  — 

It  shall  be  the  duty  of  legislatures  and  magistrates,  in 
all  future  periods  of  this  Commonwealth,  to  cherish  the 
interests  of  literature  and  the  sciences,  and  all  seminaries 
of  them,  especially  the  university  at  Cambridge ; 


56  BRIEF  FOR  HARVARD  COLLEGE 

and 

to  encourage  .  .  .  immunities  for  the  promotion  of  .  .  . 
arts,  sciences,  etc. 

Constitution  of  Mass.,  chap.  5,  sect.  2. 

This  duty  is  imposed  as  solemnly  upon  this  Court  as 
upon  the  Legislature. 

SAMUEL  HOAR, 
WILLIAM  SULLIVAN, 

for  the  Petitioners. 


BEIEF  FOE  ASSESSOKS  OF  CAMBRIDGE 

Construction  of  Statute  at  Issue 

The  issue  involves  a  judicial  construction  of  Chap.  469, 
sect.  5,  clause  3  of  the  Statutes  of  1889,  as  applicable  to 
the  several  properties  occupied  as  above  described. 

The  section  under  consideration  is  as  follows,  exempt- 
ing 

Third.  The  personal  property  of  literary,  benevolent, 
charitable,  and  scientific  institutions  and  temperance  socie- 
ties incorporated  within  this  Commonwealth,  and  the  real 
estate  belonging  to  such  institutions  occupied  by  them  or 
their  officers  for  the  purposes  for  which  they  were  incor- 
porated. 

The  general  law  (Public  Statutes,  chap.  11,  sect.  2)  ex- 
plicitly subjects  to  taxation  all  property  "  not  expressly 
exempted." 

Exemptions,  thus  being  an  exception  to  the  general 
rule,  are  regarded  as  in  derogation  of  equal  rights,  and 
the  tendency  of  the  courts  is  to  construe  them  strictly. 

Redemptorist  Fathers  v.  Boston,  129  Mass.  178. 
Mt.  Hermon  Boys'  School  v.  Gill,  145  Mass.  144. 
Cincinnati  College  v.  State,  19  Ohio  115. 

It  is  a  familiar  principle  that  no  exemption  from  taxation 
can  be  allowed  except  upon  its  being  fairly  shown  that  it 
was  intended  by  the  terms  of  the  Statutes. 

Third  Congregational  Society  v.  Springfield,  147  Mass.  396. 

History  of  this  Legislation 

Prior  to  Revised  Statutes  of  1836,  certain  exemptions 
had  been  provided  by  law  for  Harvard  College,  with  cer- 
tain exceptions  in  favor  of  local  taxation  in  Cambridge. 


58  BRIEF  FOR  CAMBRIDGE 

Harvard  College  v.  Boston,  104  Mass.  489,  citing. 
Harvard  College  v.  Kettell,  16  Mass.  204. 
Statutes  1821,  Chap.  107,  Sect.  6. 
Statutes  1830,  Chap.  151,  Sect.  6. 

As  the  Court,  Wells,  J.,  says :  — 

This  course  of  legislation  led  to  the  adoption  of  the 
qualified  general  exemption  contained  in  Revised  Statutes, 
chap.  7,  sect.  5,  which  was  as  follows  :  — 

The  following  property  and  polls  shall  be  exempted  from 
taxation. 

Secondly.  The  personal  property  of  all  literary,  bene- 
volent, charitable,  and  scientific  institutions  incorporated 
within  this  Commonwealth,  and  such  real  estate  belonging 
to  such  institutions  as  shall  actually  be  occupied  by  them 
or  by  the  officers  of  said  institutions  for  the  purposes  for 
which  they  were  incorporated. 

This  was  subsequently  reenacted  in  General  Statutes, 
chap.  11,  sect.  5,  clause  3,  which  was  as  follows  :  — 

Third.  The  personal  property  of  literary,  benevolent, 
charitable,  and  scientific  institutions  incorporated  within 
this  Commonwealth  and  the  real  estate  belonging  to  such 
institutions,  occupied  by  them  or  their  officers  for  the  pur- 
poses for  which  they  were  incorporated. 
This  statute  appears  in  Public  Statutes,  chap.  11,  sect. 
5,  clause  3,  in  the  following  form  to  wit :  — 

Third.  The  personal  property  of  literary,  benevolent, 
charitable,  and  scientific  institutions  incorporated  within 
this  Commonwealth  and  the  real  estate  belonging  to  such 
institutions,  occupied  by  them  or  their  officers  for  the  pur- 
poses for  which  they  were  incorporated  ;  but  such  real  estate, 
when  purchased  by  such  a  corporation  with  a  view  to  removal 
thereto,  shall  not,  prior  to  such  removal  be  exempt  for  a 
longer  period  than  two  years  ;  and  the  real  estate  of  such 
corporations  formed  under  general  laws  shall  not  be  exempt 
in  any  case  where  part  of  the  income  or  profits  of  their  busi- 
ness is  divided  among  their  members  or  stockholders,  or 
where  any  portion  of  such  estate  is  used  or  appropriated 
for  other  than  literary,  educational,  benevolent,  charitable, 
scientific,  or  religious  purposes. 


BRIEF   FOR  CAMBRIDGE  59 

This  last  statute  is  substantially  the  same  as  the  Statute 
of  1889,  chap.  465,  sect.  1  before  cited  (page  1). 

It  is  apparent  therefore  that  the  Revised  Statutes  codi- 
fied the  existing  laws  and  limited  the  exemptions  of  real 
estate  belonging  to  corporations  as  the  plaintiff  to  such  as 
"  shall  actually  be  occupied  by  them  or  by  the  officers 
of  said  institutions  for  the  purposes  for  which  they  were 
incorporated." 

That  the  intent  of  the  Legislature  by  this  provision  of 
the  Revised  Statutes  and  the  subsequent  later  provisions 
as  now  found  in  said  chap.  465  of  the  Acts  of  1889,  was 
to  restrict  the  terms  of  the  then  (1835)  existing  law  is 
apparent  from  the  construction  recently  placed  upon  the 
statute  in  question  in  Williams  College  v.  Williamstown, 
167  Mass.  507. 

But  it  may  be  said  that  this  was  not  the  intent  of  the 
Legislature  for  the  reason  that  subsequent  to  the  revision 
of  1835,  to  wit :  by  Statutes  1840,  chap.  28  ;  Statutes 
1850,  chap.  22  ;  and  by  Statutes  1860,  chap.  45,  when 
the  Legislature  passed  statutes  to  ascertain  the  ratable 
estate  within  this  Commonwealth  it  exempted  from  the 
operation  and  assessment  of  the  State  tax  the  estates 
belonging  to  Harvard. 

So  Justice  Wells  seems  to  have  said  in  his  opinion  in 
Harvard  College  v.  Boston,  supra  488,  in  contradistinction 
as  the  defendant  claims  to  the  later  decision  in  Williams 
College  v.  Williamstown,  supra. 

The  Statutes  of  1840,  1850,  and  1860  before  cited  are 
substantially  the  same  as  Statutes  1820,  chap.  64,  and 
1830  (1831  ?),  chap.  130,  cited  by  Justice  Wells. 

The  last  named  statute  provides  that  "  the  assessors 
for  each  city,  town,  district,  or  other  place  within  this 
Commonwealth  for  the  year  1831  shall  on  or  before  the 
first  day  of  October  next  take  and  lodge  in  the  Secretary's 
office  a  true  and  perfect  list  conformably  to  the  list  hereto 
annexed  ...  of  all  ratable  estate  both  real  and  personal 


60  BRIEF  FOR  CAMBRIDGE 

lying  within  their  city,  towns,  districts,  and  other  places 
not  exempted  by  law  from  paying  State  taxes,  expressing 
by  whom  occupied  or  possessed,  particularly  mentioning 
dwelling  houses,  etc.  .  .  . 

"  And  the  said  assessors  in  taking  the  said  valuation 
shall  designate  the  different  improvements  of  land  and 
return  the  list  in  the  following  manner  .  .  .  excepting  all 
the  estates  belonging  to  Harvard,  Williams,  and  Amherst 
Colleges,  and  to  incorporated  theological  institutions  and 
academies,  and  also  the  estate  belonging  to  the  Massachu- 
setts General  Hospital  and  improved  for  the  purposes  of 
that  institution." 

This  exception  in  these  various  statutes  has  reference 
only  to  the  real  subject  matter  of  that  clause  "  the  distin- 
guishing of  the  different  improvements  of  the  land  "  next 
to  be  more  specifically  stated,  and  did  not  relieve  the 
assessors  from  taking  and  lodging  with  the  Secretary  a 
true  and  perfect  list  of  all  ratable  estate  both  real  and 
personal .  .  .  not  exempted  by  law  from  paying  State  taxes. 

Hence  it  does  not  appear  from  these  statutes,  as  may 
be  claimed,  that  the  legislative  purpose  and  intention  was 
to  exclude  from  taxation  the  houses  of  presidents,  deans, 
and  professors  owned  by  the  institutions  and  occupied  by 
such  officers  and  their  families. 

Omissions  to  Tax 

The  omission  to  tax  these  properties  for  years  before 
(top  of  page  6  of  Report)  cannot  add  anything  to  the 
argument  in  favor  of  further  exemption,  if  such  exemp- 
tion has  all  the  while  not  been  justified  in  law.  Such  a 
doctrine  of  prescription  as  this  does  not  seem  to  be  known 
in  law. 

Question  at  Issue 

It  being  admitted  that  the  plaintiff  is  one  of  the  cor- 
porations named  in  the  section  of  the  statutes  now  under 


BRIEF  FOR  CAMBRIDGE  61 

consideration,  the  general  question,  as  applicable  to  all  the 
properties  named  in  the  Report,  is  whether  or  not  such 
occupation  of  the  houses  and  land  contiguous  thereto  is 
by  the  Corporation,  or  its  officers  and  for  the  purposes  for 
which  the  plaintiff  was  incorporated. 

Williams  College  v.  Williamstown,  167  Mass.  507. 

If  the  exemption  is  not  applicable  to  the  houses  neither 
does  it  apply  to  the  several  pieces  of  land  appurtenant  to 
the  houses. 

Trinity  Church  v.  Boston,  118  Mass.  167. 

The  removal  of  fences  and  monuments  about  and  con- 
nected with  Nos.  11,  17,  25,  37  Quincy  Street  (Report, 
p.  4)  did  not  thereby  separate  the  houses  from  the  lands 
respectively  appurtenant  thereto. 

For  convenience  and  to  secure  a  uniformity  in  the  ap- 
pearance of  the  grounds  may  have  been  the  purpose  and 
reasons  for  the  removal  of  such  fences  and  monuments. 

Officers  of  the  College 

It  is  admitted  that  the  presidents,  professors,  and  in- 
structors are  officers  of  the  college.  It  is  so  decided  in 
Williams  College  v.  Williamstown,  167  Mass.  507. 

Meaning  of  "  Occupied  " 

"  Occupied  "  denotes  continuance  and  full  possession. 
"  Occupied  by "  a  corporation  denotes  a  corporate  or 
official  occupancy,  and  not  a  personal  occupancy  by  one 
who  is  such  an  officer,  though  only  so  does  he  become 
an  eligible  occupant;  and  "  occupied  for"  a  special  pur- 
pose denotes  the  continuous  use  the  realty  is  put  to,  its 
primary  function,  the  direct  purposes  to  which  it  is  de- 
voted, i.  e.,  a  store,  residence,  bakery,  dormitory,  laundry, 
refectory,  music  hall,  schoolhouse,  lecture  or  recitation 
halls,  play  rooms,  etc.,  but  not  a  casual  or  incidental  use, 
or  a  collateral  purpose,  that  the  occupancy  may  subserve. 


62  BRIEF  FOR  CAMBRIDGE 

And  the  exempted  realty  is  also  clearly  limited  to  and 
conditioned  upon  an  occupancy  whose  purpose  is  that  for 
which  the  included  institution  was  incorporated,  and  the 
very  purpose  which  includes  it  among  the  favored  institu- 
tions ;  that  is,  the  purpose  of  the  occupancy  and  the  includ- 
ing purposes  must  be  the  same. 

To  relieve  from  taxation  the  property  must  be  shown 
to  have  been  necessarily  occupied  by  the  institution  or 
its  officers  for  the  purpose  for  which  the  institution  was 
incorporated.  The  court  has  manifested  no  inclination 
to  enlarge  the  exemption. 
Massachusetts  General  Hospital  v.  Somerville,  101  Mass.  321. 

"Occupied  for"  means  the  primary  purpose  of  the 
occupancy,  not  something  incidental,  as  in  case  of  a  par- 
sonage. The  occupant  may  at  times  worship,  yet  the 
primary  purpose  of  the  occupation  is  that  of  a  residence, 
and  is  taxable. 

A  printing  establishment  built  upon  land  belonging  to 
the  college  but  separate  from  other  land  of  the  college, 
in  which  books  are  manufactured,  to  be  purchased  and 
used  exclusively  by  the  students  of  the  college,  is  not 
occupied  for  the  purposes  for  which  the  college  was  incor- 
porated. 

The  primary  purpose  of  the  printing  establishment  is 
the  manufacture  of  books,  though  the  use  to  which  the 
books  may  be  put  may  be  of  assistance  in  the  education 
of  the  college  students.  The  primary  purpose  of  the  col- 
lege is  the  advancement  of  learning  and  education. 

As  there  may  be  several  distinct  tenements  under  the 
same  roof,  —  one  may  be  under  the  other,  —  one  may  be 
side  of  another  (Proprietors  of  Meeting  House  in  Lowell 
v.  Lowell,  1  Met.  541) ;  so  there  may  be  different  and 
distinct  occupancies  of  the  same  house  belonging  to  a  col- 
lege ;  but  the  occupancy  must  be  either  one  or  the  other, 
either  for  secular  or  college  purposes  j  if  both,  the  exemp- 
tion cannot  apply. 


BRIEF  FOR  CAMBRIDGE  63 

It  must  at  least  be  that  the  dominant  purpose  of  the 
occupation  by  the  president  and  professors  (and  of  the 
house  17  Kirkland  Street)  was  not  private,  but  that 
for  which  the  college  was  incorporated.  (Holmes,  J.,  in 
Amherst  College  v.  Amherst,  173  Mass.  233.) 

Manner  of  Occupancy 

In  reference  to  the  president's  house  and  the  houses 
occupied  by  the  other  professors  and  their  families,  and 
following  the  reasoning  in  Mount  Hermon  Boys'  School 
v.  Gill,  145  Mass.  148,  we  must  see  what  was  the  purpose 
of  the  occupancy  of  these  houses,  —  was  it  for  literary, 
educational,  benevolent  purposes,  or  in  the  language  of 
the  constitution  "  for  the  encouragement  of  arts,  sciences, 
and  all  good  literature,"  or  was  it  for  their  (the  president's 
and  professors')  own  interests  and  convenience  and  that  of 
their  families.  (Constitution  of  Massachusetts,  chap.  5, 
sect.  1,  art.  1.) 

It  has  been  held  that  rooms  occupied  by  tenants  for 
hire  of  a  corporation  established  for  charitable  uses  are 
not  exempt,  although  the  income  derived  therefor  was 
used  for  such  purposes. 

Trustees  of  Chapel  of  Good  Shepherd  v.  Boston,  120  Mass.  212. 

This  decision  was  made  on  the  ground  that  such  a  use 
and  occupation  was  not  an  occupation  by  the  corporation 
for  the  purposes  for  which  it  was  created  ;  the  occupancy 
was  for  living  purposes. 

What  distinction  can  there  be  in  the  cases  at  issue  in 
which  the  houses  were  occupied  by  the  president  and 
professors  with  their  families  ? 

Was  not  the  real  substantial  use  by  them  in  each  case 
for  living  purposes  very  much  in  excess  of  that  for 
strictly  college  purposes  ?  Even  the  drawing-room  and 
hall,  when  not  in  use  for  strictly  college  purposes,  were 
occupied  as  part  of  the  living  rooms. 


64  BRIEF  FOR  CAMBRIDGE 

The  principal  use  was  not  that  for  college  purposes,  fol- 
lowing the  decision  in  Salem  Lyceum  v.  Salem,  154  Mass. 
16,  17. 

The  fact  of  occupancy  by  an  officer  of  the  college  of  a 
certain  portion  of  a  house  does  not  create  an  occupancy 
of  the  whole  or  greater  part  of  the  house  occupied  by  his 
family. 

The  use  of  these  several  houses  was  not  of  necessity  in 
order  to  enable  the  college  to  accomplish  its  work  of 
education,  but  as  the  Report  says,  "  partly  for  his  own 
convenience  and  partly  for  the  convenience  of  the  col- 
lege "  (Report,  pp.  5,  7,  8,  10,  11). 

So,  also,  as  to  No.  25  Quincy  Street  (Report,  pp.  8,  9) 
it  appears  that  the  occupation  thereof  by  the  professor 
is  for  the  convenience  of  and  not  required  by  the  neces- 
sities of  the  college  (Report,  p.  9). 

The  president  and  professors  were  also  in  the  sole 
occupation  of  the  respective  premises  used  by  each, 
although  at  times  certain  portions  are  used  for  college 
purposes.  The  real,  substantial  occupation  was  for  pri- 
vate purposes.  There  is  no  evidence  that  the  real  con- 
trol of  these  houses  was  other  than  in  the  occupants.  It 
does  not  affect  the  control  of  the  land  connected  with  the 
houses  that  the  same  was  kept  in  order  by  the  college  at 
the  expense  of  the  latter,  under  the  direction  of  the  col- 
lege superintendent  and  for  the  most  part  by  college 
employees.  There  is  no  evidence  that  the  right  of  the 
occupant  of  any  house  to  use  the  land  adjacent  to  the 
building  is  at  all  interfered  with  or  lessened  in  this  care 
of  the  grounds  or  otherwise.  For  all  that  appears  in  the 
Report,  such  care  and  superintendence  is  part  of  the  con- 
sideration for  which  the  occupant  renders  his  services. 

Facts  of  Occupancy. 
The  agreed  facts  then  present  the  seven  houses  and 
their  plots  as  family  residences,  severally  occupied  by  a 


BRIEF  FOR  CAMBRIDGE  65 

man  and  his  family ;  such  occupants  of  one  house  being 
the  university  president  and  his  family,  and  of  the  others, 
college  officials  and  their  families. 

Thus  these  occupancies  exclude  exemption :  — 

First,  as  residential. 

Pierce  v.  Cambridge,  2  Cush.  611. 

Williams  College  v.  Williamstown,  167  Mass.  505. 

Second,  as  personal,  private  and  not  official.  Tempo- 
rary uses  of  a  reception  room  for  gatherings  of  any  sort, 
social,  religious,  collegiate,  are  appropriate  uses  by  the 
occupants  in  course  of  their  family  occupancy,  and  they 
no  more  interrupt  that  occupancy  and  initiate  another 
one  by  the  guests  than  do  like  appropriate  uses  of  a 
dining-room,  chamber,  or  other  part  of  the  house. 

Rent  as  Affecting  Occupancy 

The  question  of  rent  or  lease  or  the  manner  of  payment 
of  the  rent  is  important  only  as  bearing  upon  the  nature 
of  the  occupation  and  whether  the  occupation  is  in  fact 
for  the  purposes  for  which  the  plaintiff  was  incorporated. 

Pierce  v.  Cambridge,  2  Cush.  611. 

Massachusetts  General  Hospital  v.  Somerville,  101  Mass.  326. 
Mount  Hermon  Boys'  School  v.  Gill,  145  Mass.  145. 
Williams  College  v.  Williamstown,  167  Mass.  509. 

In  Trustees  of  Wesleyan  Academy  v.  Wilbraham,  99 
Mass.  603,  Chapman,  J.,  says,  "  In  Pierce  v.  Cambridge, 
2  Cush.  611,  a  construction  was  put  upon  a  similar  pro- 
vision of  the  statute  (i.  e.,  similar  to  chap.  11,  section  5 
of  the  General  Statutes)  then  existing.  It  was  held  that 
although  the  plaintiff  was  a  professor  in  Harvard  College, 
yet  a  house  belonging  to  the  corporation  was  not  exempt 
from  taxation  while  he  held  it  under  a  lease  from  them, 
paying  rent  therefor."  Then  the  Court  goes  on  to  say 
further,  "  If  he  had  occupied  without  taking  a  lease  or 
paying  rent,  the  Court  say  it  would  have  been  otherwise. 


66  BRIEF  FOR  CAMBRIDGE 

It  was  held  to  be  taxable,  because  the  present  estate  was 
in  the  lessee  and  the  corporation  had  only  a  reversionary 
interest." 

These  last  statements  taken  by  themselves  might  seem 
to  appear  that  the  question  whether  or  not  the  estate 
was  taxable  depended  upon  the  fact  whether  or  not  he 
was  paying  rent  therefor. 

But  upon  further  reading  of  the  opinion,  it  is  apparent 
that  the  decision  of  the  Court  was  in  reality  based  upon 
the  purpose  for  which  the  same  was  occupied,  or  to  use 
the  language  of  the  Court,  "But  as  it  (i.  e.,  the  estate 
in  question)  is  managed,  the  object  not  being  to  make 
a  profit  to  the  funds  of  the  institution,  but  to  benefit  the 
students,  it  is  as  really  used  for  the  purpose  for  which  the 
institution  was  incorporated  as  the  buildings,  and  school 
apparatus."     (The  italics  are  mine.) 

Exemption  of  Church  Peoperty 

So  as  to  exemption  from  taxation  of  church  property ; 
"  the  exemption  depends  upon  the  use  for  which  the 
building  in  question  is  intended  and  is  limited  by  such 
use." 

Old  South  Society  v.  Boston,  127  Mass.  379. 

And  this  exemption  is  extended  only  to  such  part  of 
the  property  which  was  used  as  a  place  of  worship  and 
for  the  purposes  connected  with  it,  such  as  the  vestry, 
the  furnace  and  the  like. 

Lowell  Meeting  House  v.  Lowell,  1  Met.  158. 
Old  South  Society  v.  Boston,  supra  379. 
Trinity  Church  v.  Boston,  118  Mass.  164. 

And  does  not  exempt  a  parsonage. 

Third  Congregational  Society  v.  Springfield,  147  Mass.  396. 

Real  Purpose  of  Occupation 
Can  it  be  contended  that  a  house  owned  by  a  college 


BRIEF  FOR  CAMBRIDGE  67 

located  separately  anywhere  else  than  upon  the  ground 
which  forms  a  part  of  the  college  yard  in  Cambridge,  the 
rooms  of  which  were  used  for  different  college  purposes 
incident  to  the  duties  of  the  professor  occupying  it, 
"  partly  for  his  convenience  and  partly  for  the  conveni- 
ence of  the  plaintiff,"  should  be  exempt,  because  of  such 
a  use,  and  because  by  such  an  occupancy  the  purposes  of 
the  college  might  be  assisted  and  furthered  ? 

So  as  to  a  portion  of  a  house,  like  No.  37  Quincy  Street, 
built  by  the  college  upon  land  owned  by  it,  in  some  other 
location,  occupied  by  the  professor  and  his  family;  can 
that  be  said  to  be  exempt  simply  because  of  such  occupa- 
tion ? 

Is  not  the  occupation  as  much  in  one  case  for  the  pur- 
poses of  incorporation  as  in  the  other,  or,  in  other  words, 
is  it  not  as  much  for  the  interests  of  the  college,  and  are 
not  the  necessities  of  such  occupation  as  apparent  in  one 
case  as  in  the  other  ?  That  is  to  say,  it  is  apparent  the 
professor  must  have  a  home  and  live  somewhere,  other- 
wise he  could  not  transact  his  duties  as  such  professor ; 
and  for  the  time  being,  and  in  the  performance  of  such 
duties,  he  is  occupying  his  residence,  and  in  such  an 
occupation  he  is,  as  far  as  the  prosecution  of  his  duties 
is  concerned,  carrying  out  in  part  the  purposes  for  which 
the  college  was  incorporated,  to  wit :  the  imparting  of 
knowledge  to  the  students  and  the  increase  of  learning  to 
that  extent. 

Such  a  rule  of  construction  would  be  contrary  to  the 
rule  above  cited  and  cannot  be  sustained. 

The  fact  that  Professor  Langdell  occupies  the  house  as 
a  professor  of  law  does  not  change  the  nature  of  his  occu- 
pancy. He  may  have  a  number  of  titles,  and  if  he  did 
it  would  not  affect  his  occupancy,  which  is  that  of  a  resi- 
dence for  himself  and  family  no  matter  by  what  or  how 
many  titles  he  may  be  called  or  known. 

This  differs  from  the  case  of  Massachusetts  General 


68  BRIEF  FOR  CAMBRIDGE 

Hospital  v.  Somerville  in  this,  that  the  building  here  is 
upon  land  taxed.  In  that  case  the  land  was  not  taxed 
and  was  exempt  by  reason  of  the  manner  in  which  it  was 
held,  and  the  house  occupied  by  the  person,  who  devoted 
his  time  exclusively  to  the  care  of  the  grounds  not  taxed, 
was  considered  by  the  Court  as  "  being  used  as  an  incident 
only  to  the  general  purposes  for  which  the  land  was  held 
and  occupied  by  the  said  person  'for  reasons  of  con- 
venience.' " 

So  in  Trustees  of  Wesleyan  Academy  v.  Wilbraham, 
99  Mass.  599-603,  the  land  upon  which  the  building  was 
situated  was  not  taxed,  and  the  question  there  was 
whether  or  not  the  use  of  the  building  by  the  college 
as  a  boarding  house  to  cheapen  the  education  of  the 
students  took  this  property  out  of  the  exemption,  or 
whether  it  was  within  the  purposes  for  which  the  institu- 
tion was  incorporated.     The  latter  was  held. 

So  in  the  case  of  Mount  Hermon  Boys'  School  v.  Gill, 
the  distinction  as  made  by  the  Court,  is  whether  or  not 
the  use  of  the  barn  was  for  carrying  out  the  purposes  of 
the  incorporation,  to  lessen  the  cost  of  the  education 
of  the  students.  In  this  the  parties  in  interest  to  be 
benefited,  to  wit :  the  students,  were  first  considered. 

It  would  be  certainly  a  forced  construction  to  apply 
the  reasoning  of  that  case  in  behalf  of  the  students  to  the 
case  at  issue.  Nor  does  it  appear  by  the  Report,  in  any 
case,  that  the  object  of  this  use  by  the  president  and  pro- 
fessors was  to  assist  the  student  and  make  less  the  cost  of 
his  education ;  on  the  other  hand,  as  far  as  one  can  infer, 
it  would  seem  that  this  method  of  occupancy,  at  least,  so 
far  as  to  the  houses  occupied  by  the  professors  and  the 
voting  of  their  salary,  fixing  the  same  in  the  fall  of  the 
year  at  a  certain  sum,  "and  the  use  of  the  house"  vari- 
ously estimated  in  value  in  each  case  (pp.  7,  8,  9, 10,  11) 
was  an  indirect  method  of  producing  revenue  to  the  col- 
lege. 


BRIEF  FOR  CAMBRIDGE  69 

Income  Derived  from  Property 
Assuming  that  the  assessed  value  upon  house  and  land 
appurtenant  in  each  case  is  fair,  we  have,  in  each  instance, 
the  amount  saved  on  salaries  and  as  an  investment,  as 
follows  :  — 

11  Quincy  Street,  total  value  house  and  land  $19,000,  use  of 
house  $750,  about  4  per  cent. 

16  Quincy  Street,  total  value  house  and  land  $12,000,  use  of 
house  $500,  about  4  per  cent. 

25  Quincy  Street,  total  value  house  and  land  $24,000,  use  of 
house  $1,000,  about  4  per  cent. 

37  Quincy  Street,  total  value  house  and  land  $17,000,  use  of 
house  $700,  about  4  per  cent. 

38  Quincy  Street,  total  value  house  and  land  $12,000,  use  of 
house  $900,  about  7  per  cent. 

11  Frisbie  Place,  total  value  house  and  land  $18,000,  use  of 
house  $700,  about  4  per  cent. 

making  a  total  revenue,  on  $102,000  valuation,  of 
$4,550,  nearly  four  and  one  half  per  cent,  in  the  form 
of  salaries. 

Neither  does  the  gift  of  the  president's  house  for  the 
presidents  affect  the  kind  of  occupancy,  i.  e.,  residential, 
and  thus  bring  it  within  the  exemption  in  spite  of  such 
occupancy. 

17  Kirkland  Street 

As  to  No.  17  Kirkland  Street,  it  appears  that  the  first 
floor  is  used  as  a  boarding  house,  the  other  floors  as  sleep- 
ing rooms  or  living  rooms  for  students.  It  is  in  the  occu- 
pation of  students,  not  of  the  college,  and  not  for  educa- 
tional and  scientific  purposes  of  the  college. 

The  reasons  heretofore  given  in  regard  to  the  other 
houses  apply  with  the  same  force  to  this  house  and  land 
and  need  not  be  repeated. 


70  BRIEF  FOR  CAMBRIDGE 

Conclusion 

The  last  clause  of  the  section  of  the  statute  under  con- 
sideration provides  that  as  to  corporations  formed  under 
the  general  laws,  no  part  shall  be  exempt  where  any  por- 
tion of  the  real  estate  is  used  other  than  for  the  purposes 
for  which  the  corporation  was  incorporated. 

In  the  case  of  houses  of  religious  worship  those  portions 
not  used  for  such  are  taxed  (Chap.  11,  sect.  5,  clause  7, 
Public  Statutes). 

The  statute  is  silent  as  to  such  corporations  as  the 
plaintiff,  in  case  of  a  use  of  a  portion  not  within  the 
exemption.  The  most  charitable  and  just  action  would 
be  to  impose  a  tax  upon  the  plaintiffs  to  the  extent  of  the 
property  owned  and  not  occupied  by  them  for  the  pur- 
poses for  which  the  plaintiffs  were  incorporated.  This  is 
what  the  defendants  have  undertaken  to  do  in  the  impo- 
sition of  these  assessments. 

Therefore  judgment  should  be  entered  for  the  defend- 
ants. 

Respectfully  submitted, 

GILBERT  A.   A.   PEVEY, 

Attorney  for  the  Defendants. 


ON  January  4,  1900,  the  Court  rendered  its  decision 
affirming  the  judgment  of  the  Superior  Court. 
At  the  same  time  a  decision  was  rendered  in  the  case  of 
Phillips  Academy  v.  Andover,  which  had  been  argued 
before  the  Harvard  College  case.  The  opinion  in  each 
case  was  written  by  Mr.  Justice  Morton.  As  many  of 
the  principles,  considerations,  and  authorities  appli- 
cable to  the  Harvard  College  case  are  stated  at  length 
in  the  Phillips  Academy  case,  and  are  only  referred  to 
but  not  restated  in  the  Harvard  College  case,  it  ivill  be 
necessary  to  read  both  opinions  in  order  to  get  the  full 
statement  of  the  law  applicable  to  the  latter  case.  These 
opinions  are  as  follows :  — 

TKUSTEES  OF  PHILLIPS  ACADEMY 

vs.  a:ndoyer 

Opinion 

Morton,  J.  This  case  was  heard  on  agreed  facts,  and 
the  principal  question  is  whether  the  property  for  which 
the  plaintiffs  were  assessed  was  exempt  from  taxation,  by 
virtue  of  Pub.  St.,  ch.  11,  sec.  5,  cl.  3,  as  amended  by 
Statute  1889,  chap.  465  which  provides  that  "  the  per- 
sonal property  of  literary,  benevolent,  charitable,  and 
scientific  institutions  and  temperance  societies,  incorpo- 
rated within  this  Commonwealth,  and  the  real  estate 
belonging  to  such  institutions  occupied  by  them  or  their 
officers  for  the  purposes  for  which  they  are  incorporated  " 
shall  be  exempt  from  taxation.  There  can  be  no  doubt 
that  Phillips  Academy  is  an  institution  within  the  mean- 
ing of  the  exempting  clause,  and  that,  with  perhaps  a 
possible  doubt  in  the  case  of  Professor  Park,  the  persons 


72  OPINION  IN   PHILLIPS  ACADEMY   CASE 

occupying  the  various  houses  were  officers  of  the  institu- 
tion (Williams  College  v.  Williamstown,  167  Mass.  505). 
A  more  difficult  question  is  whether  the  property  was 
occupied  by  them  for  the  purposes  for  which  the  institu- 
tion was  incorporated. 

It  is  not  easy,  and  perhaps  not  possible,  to  define  what 
will  constitute  such  an  occupancy  under  all  circumstances, 
and  we  shall  not  attempt  it ;  but  there  are  some  general 
rules  and  considerations  which  we  deem  it  proper  to  state 
notwithstanding  the  disposition  which  is  made  of  this  case. 

The  occupancy  referred  to  usually  will  result  from  the 
official  connection  of  the  officer  with  the  institution  and 
commonly  will  continue  only  so  long  as  such  connection 
lasts.  The  Legislature  could  have  provided  as  it  did 
formerly  in  the  case  of  Harvard  College  (see  Tax  Act  of 
1818  and  prior  and  subsequent  Tax  Acts)  that  such  occu- 
pancy of  itself  should  exempt  the  estate  from  taxation  or 
even  that  all  of  the  real  estate  belonging  to  a  favored 
institution  should  be  exempt.  Previous  to  the  adop- 
tion of  the  Revised  Statutes,  this  seems  to  have  been 
the  case,  —  with  a  qualification  after  a  time  in  regard  to 
Harvard  College  and  Phillips  Academy.  The  exemp- 
tions were  incorporated  each  year  in  the  annual  tax  act 
and  the  institutions  exempted  were  described  by  name, 
except  that  beginning  with  1801  there  was  in  each  act  a 
general  provision  exempting  academies  established  by  the 
law  of  this  Commonwealth.  Phillips  Academy  came 
under  this  general  provision,  but  by  a  proviso  in  the  Act 
of  1821  (chap.  107,  sec.  6)  and  in  succeeding  acts,  it 
was  provided  (and  this  is  the  qualification  referred  to 
above)  that  nothing  contained  in  the  act  should  "  pre- 
vent the  Town  of  Andover  from  taxing  such  real  estate 
belonging  to  the  Corporation  of  Phillips  Academy  situate 
in  said  town  as  shall  not  be  under  the  immediate  occupa- 
tion and  improvement  of  said  corporation  or  of  any  per- 
son or  persons  connected  with  said  corporation,  exempted 


OPINION  IN  PHILLIPS  ACADEMY  CASE  73 

from  taxation  by  this  act."  The  persons  who  were  ex- 
empted from  taxation  that  were  connected  or  likely  to 
be  connected  with  Phillips  Academy  were  ministers  of 
the  Gospel,  preceptors  of  academies,  and  Latin  grammar 
school  masters.  These  and  other  personal  exemptions 
relating  to  "  the  president,  professors,  tutors,  librarians, 
and  students  of  Harvard,  Williams,  and  Amherst  Col- 
leges, and  of  all  other  theological,  medical,  and  literary 
institutions,"  were  repealed  by  Statute  1828,  chap.  143. 
The  effect  of  this  repeal,  so  far  as  Phillips  Academy  was 
concerned,  seems  to  have  been  to  cause  the  omission  from 
the  proviso,  in  subsequent  tax  acts,  of  the  concluding 
clause  which  had  provided  by  implication  that  real  estate 
belonging  to  the  corporation  and  occupied  by  any  person 
connected  with  it  should  be  exempt  from  taxation. 

By  the  Revised  Statutes,  a  general  rule  was  established 
which  described  in  a  single  phrase  the  institutions  to  be 
exempted,  and  limited  the  exemption  to  the  real  estate 
belonging  to  them  and  "  actually  occupied  by  them  or  by 
the  officers  of  such  institutions  for  the  purposes  for  which 
they  are  incorporated."  (Rev.  Stat.  chap.  7,  sec.  5, 
cl.  2.)  This  statute,  with  certain  additions  and  amend- 
ments not  now  material,  has  been  continued  by  successive 
reenactments  to  the  present  time.  It  is  manifest  that 
under  the  Revised  Statutes  and  succeeding  statutes,  the 
mere  fact  that  real  estate  belonging  to  an  exempted 
institution  was  occupied  by  it  or  by  one  of  its  officers, 
could  not  be  regarded  as  sufficient  without  anything  more 
to  exempt  the  property  from  taxation,  and  it  has  not 
been  so  regarded.  (Peirce  v.  Cambridge,  2  Cush.  611 ; 
Williams  College  v.  Williamstown,  167  Mass.  505 ;  Am- 
herst College  v.  Amherst,  173  Mass.  232.)  In  any 
other  view,  the  words  "  for  the  purposes  for  which  they 
are  incorporated"  would  be  unnecessary  and  meaning- 
less. The  omission  from  subsequent  statutes  of  the 
word   "  actually "    which    was    in  the    Revised    Statutes 


74  OPINION   IN   PHILLIPS  ACADEMY   CASE 

does  not  affect  the  construction.  (Lynn  Workingmen's 
Aid  Association  v.  Lynn,  136  Mass.  283-285.)  Whatever 
else  therefore  may  be  said  of  the  occupancy  it  must  be 
for  the  purposes  for  which  the  institution  was  incorpo- 
rated, and  this  renders  it  necessary  to  inquire  into  the 
nature  and  character  of  the  occupancy.  If,  taking  all  of 
the  circumstances  and  all  legitimate  considerations  into 
account,  it  can  be  fairly  said  that  the  purpose  of  the  occu- 
pancy is  that  for  which  the  institution  was  incorporated, 
then  the  property  is  exempt,  otherwise  not. 

The  occupancy  contemplated  by  the  statute  means,  we 
think,  something  more  than  that  which  results  from  own- 
ership and  possession  on  the  part  of  the  institution,  or  the 
use  of  the  property  for  investment  purposes.  It  must  have 
or  be  supposed  to  have  direct  reference  to  the  purposes 
for  which  the  institution  was  incorporated,  and  must  tend 
or  be  supposed  to  tend  directly  to  promote  them.  In  a 
sense,  any  occupancy  on  the  part  of  the  institution  or  its 
officers  may  be  said  to  have  reference  to  those  purposes 
and  to  promote  them.  But  the  language  of  the  statute  im- 
ports, we  think,  a  direct,  or  what  is  supposed  to  be  a  direct, 
connection  between  the  occupation  and  the  purposes  for 
which  the  institution  was  incorporated,  and  not  an  indirect 
one.  It  is  not  enough,  for  instance,  that  an  income  is 
derived  from  the  occupancy  which  is  applied  to  carrying  on 
the  institution.  (Chapel  Good  Shepherd  v.  Boston,  120 
Mass.  212.)  At  the  same  time  the  occupancy  may  be  of 
the  kind  contemplated  by  the  statute,  notwithstanding 
that  as  incident  to  it  rent  is  received  or  the  pecuniary 
value  to  the  officer  occupying  is  taken  into  account  in 
some  other  manner.  (Mass.  Gen.  Hospital  v.  Somerville, 
101  Mass.  319.)  The  distinction  lies,  it  seems  to  us, 
between  an  occupancy  which  is  for  the  private  benefit 
and  convenience  of  the  officer,  and  which  is  so  regarded 
by  the  parties,  as  in  the  ordinary  case  of  landlord  and 
tenant,  and  an  occupancy  where,  although  necessarily  to 


OPINION   IN  PHILLIPS  ACADEMY   CASE  75 

some  extent  the  relation  of  landlord  and  tenant  enters 
into  it,  the  dominant  or  principal  matter  of  consideration 
is  the  effect  of  the  occupancy  in  promoting  the  objects  of 
the  institution  in  the  various  ways  in  which  such  occu- 
pancy may  or  will  tend  to  promote  them.  In  the  former 
case  the  property  would  not  be  exempt,  in  the  latter  it 
would ;  and  the  fact  that  the  institution  incidentally  de- 
rived some  pecuniary  advantage  from  the  occupancy 
would  not  deprive  the  property  of  the  exemption  to 
which  it  otherwise  would  be  entitled. 

In  considering  whether  property  is  occupied  so  as  to 
be  exempt,  regard  may  be  had  amongst  other  things  to 
the  situation  of  the  institution.  If,  for  instance,  it  is  so 
situated  that  desirable  residences  are  not  or  may  not  be 
easily  obtained,  and  those  in  charge  of  it  are  of  opinion 
that  such  officers  as  the  best  interests  of  the  institution 
and  of  those  resorting  to  it  require  can  be  more  easily 
obtained  if  the  institution  provides  places  for  them  to 
live  in,  and  it  does  so,  this  may  be  taken  into  account  in 
determining  whether  the  occupancy  is  for  the  purposes 
for  which  the  institution  was  incorporated.  Or  again,  if 
with  the  best  interests  of  the  institution  as  an  educa- 
tional institution  in  view,  and  for  the  purpose  of  enhan- 
cing its  advantages  to  students  and  of  promoting  discipline 
and  good  conduct  and  greater  freedom  of  intercourse 
between  students  and  professors  and  instructors,  those  in 
charge  deem  it  advisable  that  the  president  and  profes- 
sors and  others  connected  with  the  institution  should 
occupy  residences  in  the  college  yard  or  in  proximity  to 
the  college  buildings,  this  also  may  be  taken  into  account. 
The  dominant  purpose  of  the  occupancy  under  such  or 
similar  circumstances  may  be  as  truly  that  for  which  the 
institution  was  incorporated,  as  the  occupancy  of  build- 
ings for  recitation  purposes,  or  for  offices,  or  for  other  like 
purposes  would  be.  And  the  occupancy  does  not  lose 
what  may  be  termed  its  institutional  character  and  pur- 


76  OPINION   IN  PHILLIPS  ACADEMY  CASE 

pose  because  as  incidental  to  it  the  officers  and  their  fami- 
lies are  provided  with  homes  for  the  use  and  enjoyment 
of  which  by  them  compensation  is  allowed  or  taken  into 
account  in  some  manner.  In  many  if  not  most  New 
England  colleges  and  academies,  the  presence  of  the 
families  of  the  professors  and  other  officers  has  been  and 
is  regarded  as  beneficial  to  the  students  and  as  advanta- 
geous to  the  institution.  The  occupation,  therefore,  by 
them  as  homes  of  property  belonging  to  such  institutions 
would  not  necessarily  be  inconsistent  with  the  spirit  and 
intent  of  the  exempting  clause. 

In  considering  the  purpose  of  the  occupancy,  due  weight 
is  also  to  be  given  to  the  intentions  of  those  in  charge  of 
the  institution.  The  institution  can  only  act  through 
agents.  In  Mass.  Gen.  Hospital  v.  Somerville,  101  Mass. 
319-322,  it  is  said  that  "what  lands  are  reasonably  re- 
quired and  what  use  of  lands  will  promote  the  purposes 
for  which  the  institution  was  incorporated  must  be  deter- 
mined by  its  officers.  ...  In  the  absence  of  anything  to 
show  abuse  or  otherwise  to  impeach  their  determination, 
it  is  sufficient  that  the  lands  are  intended  for  and  in  fact 
appropriated  to  those  purposes ;  "  and  again,  later,  "  the 
presumption  is  in  favor  of  their  judgment  and  it  requires 
something  more  than  mere  difference  of  opinion  upon  a 
matter  of  opinion  especially  confided  to  them,  to  over- 
come that  presumption."  Their  conclusions  are  not  final. 
But  if  consistent  with  other  facts  tending  to  show  that  the 
purpose  of  the  occupancy  is  that  for  which  the  institution 
was  incorporated,  they  well  may  be  allowed  to  have  a  con- 
trolling effect. 

The  question  whether  in  any  given  case  the  property  is 
or  is  not  exempt  is  to  be  determined  by  considering  all  of 
the  facts  and  circumstances ;  and  the  intentions  and  pur- 
poses of  those  in  charge  of  the  institution  respecting  the  use 
and  occupation  of  the  property  will  or  may  have  a  mate- 
rial bearing  upon  the  proper  determination  of  the  question. 


OPINION  IN  PHILLIPS  ACADEMY  CASE  77 

In  applying  the  principles  thus  laid  down,  it  is  clear 
that  not  only  may  premises  used  by  officers  as  homes 
for  themselves  and  their  families  be  so  occupied  by  such 
officers  as  to  be  exempt,  but  also  dormitories  and  dining- 
halls,  and  boarding-houses,  gymnasiums,  and  other  build- 
ings intended  primarily  for  and  actually  devoted  to  the 
use  and  benefit  of  students  or  those  attending  the  institu- 
tion for  the  purposes  for  which  it  was  incorporated.  The 
statute  is  not  to  be  construed  narrowly  but  in  a  fair  and 
liberal  sense  and  so  as  to  promote  that  spirit  of  learning, 
charity,  and  benevolence  which  it  has  always  been  one 
of  the  fundamental  objects  of  the  people  of  this  State 
to  encourage. 

We  think  that  there  is  nothing  in  Peirce  v.  Cambridge, 
2  Cush.  611;  Williams  College  v.  Williamstown,  supra; 
and  Amherst  College  v.  Amherst,  173  Mass.  232,  neces- 
sarily inconsistent  with  the  views  expressed  above.  In 
Peirce  v.  Cambridge,  the  question  as  stated  in  Williams 
College  v.  Williamstown,  supra,  "  was  whether  the  real 
estate  was  taxable  to  Peirce  as  tenant,"  etc.  The  decision 
was  put  on  the  ground  that  the  facts  were  such  as  to  cre- 
ate in  Professor  Peirce  an  estate  as  tenant  for  which  he 
was  taxable.  Perhaps  the  case  might  have  stood  equally 
well  on  the  ground  that  the  occupation  appeared  to  be 
rather  for  the  private  benefit  and  convenience  of  Profes- 
sor Peirce  than  for  the  purposes  for  which  the  college 
was  incorporated ;  so  in  Williams  College  v.  Williamstown 
the  occupation  was  held  by  the  majority  of  the  Court 
to  be  for  private  purposes.  That  case  stands  on  its  own 
facts  and  was  not  supposed  by  a  majority  of  the  Court  to 
overrule  any  prior  cases  or  to  change  the  law  as  it 
had  been  previously  practised  and  understood.  Amherst 
College  v.  Amherst  followed  the  Williamstown  case  and 
went  on  the  ground  that  it  could  not  be  held  as  matter 
of  law,  which  was  the  ruling  of  the  Superior  Court, 
that  the  house  was  exempt,  though  it  was  intimated  in  the 


78  OPINION   IN  PHILLIPS  ACADEMY  CASE 

opinion  that  it  could  have  been  found  "  that  the  dominant 
purposes  of  the  president's  occupation  were  not  private 
but  those  for  which  the  college  was  incorporated."  On 
the  other  hand,  we  think  that  the  conclusions  which  we 
have  reached  are  abundantly  supported  by  Wesleyan 
Academy  v.  Wilbraham,  99  Mass.  599 ;  Mass.  Gen.  Hos- 
pital v.  Somerville,  siqwa  ;  Mt.  Hermon  Boys'  School  v. 
Gill,  145  Mass.  139  in  this  State,  and  State  v.  Ross,  24 
N.  J.  L.  497,  and  Yale  University  v.  New  Haven,  42  Atl. 
Rep.  87.  In  addition  to  these  cases,  the  case  of  Salem 
Lyceum  v.  Salem,  154  Mass.  14,  should  be  referred  to. 
The  property  in  that  case  was  held  to  be  unexempt,  but 
it  was  stated  that  "  if  the  principal  occupation  is  by  the 
plaintiff  for  those  purposes  (i.  e.,  the  purposes  for  which 
the  plaintiff  was  incorporated)  occasional  and  incidental 
use  and  occupation  for  other  purposes  might  not  render 
it  liable  to  taxation,"  thus  recognizing  that  it  is  or  may 
be  the  dominant  purpose  which  gives  character  to  the 
occupation.  As  illustrating  still  further  the  effect  of  in- 
tention not  only  upon  the  character  of  the  occupation, 
but  as  establishing  the  fact  of  occupancy  for  a  purpose 
entitling  the  property  to  exemption,  see  N.  E.  Hospital 
v.  Boston,  113  Mass.  518,  and  Trinity  Church  v.  Boston, 
118  Mass.  164.  See  also  Rural  Cemetery  v.  Co.  Com.,  152 
Mass.  408.  In  this  last  case  the  petitioner,  which  was  a 
cemetery  corporation,  was  authorized  to  purchase  addi- 
tional lands  to  be  "  applied  exclusively  "  to  the  objects  of 
the  corporation.  It  purchased  land  on  which  there  was 
a  dwelling-house  and  barns,  and  it  was  assessed  for  the 
land.  At  the  time  of  the  assessment,  no  burial  lots  had 
been  laid  out  on  the  land  so  purchased.  But  it  was  held 
that  it  could  not  be  said  that  the  land  was  not  devoted 
exclusively  to  the  objects  of  the  corporation,  and  that  the 
exemption  from  taxation  of  the  dwelling-house  and  barns 
was  justified  by  the  fact  that  the  buildings  and  their  occu- 
pation as  described  were  necessary  for  the  business  of  the 


OPINION  IN  HARVARD  COLLEGE  CASE  79 

corporation  and  the  management  of  the  cemetery,  and 
the  property  was  accordingly  declared  to  be  exempt. 
This  case  would  seem  to  show  that  even  if  the  occupation 
was  required  to  be  exclusively  for  the  purposes  for  which 
the  institution  was  incorporated  (though  we  do  not  think 
it  is)  an  occupation  by  an  officer  and  his  family  might  be 
regarded  under  some  circumstances  as  exclusively  for 
such  purposes  notwithstanding  the  element  of  private 
benefit.     See  White  v.  Bay  ley,  10  C.  B.  (n.  s.)  227. 

Whether  the  occupancy  by  Professor  Taylor  should  be 
referred  to  his  life  estate  or  to  his  connection  with  the 
academy  as  professor,  or  whether  the  academy  is  taxable 
for  its  reversionary  interest,  we  do  not  deem  it  necessary 
to  consider  now. 

Down  to  this  point  we  are  all  substantially  agreed. 
But  some  of  my  brethren  think  that  the  facts  are  not 
stated  with  sufficient  fulness  to  enable  us  to  pass  satis- 
factorily upon  the  subject  thus  far  considered,  and  that 
the  agreed  facts  should  be  discharged  and  the  case  sent 
back,  so  that  the  facts  can  be  presented  more  fully. 
Others  of  my  brethren  and  myself  are  inclined  to  con- 
strue the  agreed  facts  somewhat  liberally  and  to  think 
that  we  can  decide  the  case  now.  But  with  this  expres- 
sion we  yield  to  the  views  of  those  of  our  brethren  who 
think  otherwise,  and  are  content  that  the  agreed  facts 
should  be  discharged  and  the  case  sent  back  for  another 
trial. 

PRESIDENT  AND  FELLOWS  OF  HARVARD 
COLLEGE  vs.  ASSESSORS  OF  CAMBRIDGE 

Opinion 

Morton,  J.  This  is  an  action  to  recover  back  taxes 
that  were  assessed  by  the  defendants  on  certain  parcels 
of  real  estate  belonging  to  the  plaintiff  corporation  situ- 
ated in  Cambridge,  which  the  plaintiff  contends  were 


80  OPINION   IN   HARVARD  COLLEGE   CASE 

exempt  from  taxation  under  Public  Statutes,  Chap.  11, 
Section  5,  Clause  3,  as  amended  by  Statute  1889,  Chap- 
ter 465. 

The  case  was  heard  by  a  Justice  of  the  Superior  Court 
without  a  jury  on  what  are  called  agreed  facts,  but  which 
we  interpret  as  authorizing  him  to  draw  such  inferences 
as  he  thought  warranted ;  he  held  that  the  property  was 
exempt,  and  found  for  the  plaintiff  for  the  entire  amount, 
and  reported  the  case  to  this  Court  in  such  a  manner  as 
to  present  the  question  of  the  assessability  of  each  of  the 
parcels. 

We  think  that  the  ruling  of  the  Superior  Court  was 
right,  and  that  all  of  the  property  was  exempt  from  taxa- 
tion. Many  of  the  principles  and  considerations  and 
authorities  applicable  to  this  case  have  been  stated  and 
referred  to  somewhat  at  length  in  Trustees  of  Phillips 
Academy  v.  Andover,  ante,  and  we  do  not  deem  it  neces- 
sary to  repeat  them  here. 

The  history  of  Harvard  College  and  of  like  institutions 
shows,  we  think,  that  from  the  beginning,  dormitories  and 
dining-halls  have  been  furnished  by  the  college  for  the 
use  of  the  students,  and  have  been  regarded  as  devoted 
to  college  purposes.  In  addition  to  this,  the  effect  of  the 
decisions  in  Wesleyan  Academy  v.  Wilbraham,  99  Mass. 
599,  and  Mt.  Hermon  Boys'  School  v.  Gill,  145  Mass.  139, 
is  plainly  to  exempt  property  applied  to  such  uses.  See 
also  Yale  University  v.  New  Haven,  71  Conn.  316,  and 
State  v.  Ross,  24  N.  J.  L.  497.  We  do  not  think  that  it 
makes  any  difference  in  principle  that  the  college,  instead 
of  furnishing  board  itself,  provides  a  place,  without  rent 
or  compensation  in  any  form  or  a  lease  or  any  agreement 
for  a  fixed  term,  for  the  use  of  students  who  club  together 
for  the  purpose  of  obtaining  for  themselves  with  the 
assistance  of  the  college,  food  at  cost.  The  property  so 
used  is  occupied,  it  seems  to  us,  for  the  purposes  for  which 
the  college  was  incorporated.    Many  particulars  are  stated 


OPINION   IN   HARVARD  COLLEGE   CASE  81 

in  the  agreed  facts  in  regard  to  No.  17  Kirkland  Street, 
which  is  the  parcel  that  we  are  now  considering,  which 
we  do  not  think  it  necessary  to  refer  to,  as  it  seems  to  us 
plain  that  the  property  is  exempt  from  taxation. 

The  history  of  the  college  and  of  the  legislation  relat- 
ing to  it  also  shows,  we  think,  that  the  president's  house, 
during  the  earlier  years  of  the  college  at  any  rate,  was 
regarded  as  almost,  if  not  quite  as  necessary  for  the  pur- 
poses of  the  institution  as  dormitories  and  dining-halls. 
Public  money  was  appropriated  by  the  General  Court  to 
build  it  as  it  had  been  to  build  the  college  buildings,  and 
the  occupancy  of  it  was  evidently  considered  as  official. 
The  present  house  was  built  with  funds  given  expressly 
for  the  purpose  of  erecting  a  dwelling-house  for  the  presi- 
dent and  his  successors  in  office,  and  since  it  was  built  has 
been  occupied  by  them  and  their  families.  The  president 
is  required  to  live  in  Cambridge.  He  pays  no  rent  or 
compensation  for  the  use  and  occupation  of  the  house, 
and  has  no  lease,  but  occupies  it,  if  he  chooses,  so  long 
as  he  performs  the  duties  of  president.  It,  with  several 
of  the  other  houses  that  were  taxed,  namely,  Nos.  11, 
25,  and  37  Quincy  Street,  this  being  17  Quincy  Street, 
are  now  and  were  at  the  time  of  the  assessment  within 
the  college  grounds,  and  the  premises  are  kept  in  order 
and  repair,  including  grading,  gravelling  walks,  fertiliz- 
ing, and  repairing  and  cleaning  furnace,  removal  of  ashes, 
etc.,  under  the  direction  of  the  college  superintendent 
of  buildings  and  the  superintendent  of  grounds  and  at 
the  college  expense.  The  whole  lower  floor,  "  except 
possibly  the  kitchen,  is  used  for  Class  Day,  Commence- 
ment, and  other  receptions,  and  for  many  hospitalities 
incident  to  the  president's  functions."  "  The  hall  and 
drawing-room  are  also  used  for  the  convenience  of  the 
college  and  the  president  for  meetings  of  the  faculty 
and  committees,  for  conferences  with  university  officers 
and  students,  for  calls  on  university  business,  and  for  the 


82  OPINION  IN  HARVARD   COLLEGE   CASE 

annual  meetings  of  the  Corporation  at  which  degrees  are 
voted."  The  rest  of  the  house  consists  of  the  usual  liv- 
ing and  housekeeping  rooms  and  chambers,  and  is  used 
by  the  president  and  his  family  as  a  dwelling-house. 

It  seems  to  us  that  on  these  facts,  the  Judge  who  heard 
the  case  was  justified  in  finding  that  the  dominant  or 
principal  purpose  of  the  occupancy  by  the  president  was 
that  for  which  the  college  was  incorporated.  His  occu- 
pation, it  could  be  fairly  said,  was,  so  far  as  the  University 
was  concerned,  official,  as  the  head  of  the  University,  just 
as,  for  instance,  the  President  occupies  the  White  House, 
and  not  in  any  just  sense,  primarily  or  principally  for  his 
own  private  benefit. 

The  remaining  six  houses  are  occupied  by  professors, 
three  of  whom  are  deans,  each  charged  with  a  portion  of 
the  administrative  duties  formerly  devolving  exclusively 
on  the  president.  Three  of  the  houses,  as  already  ob- 
served, are  within  the  college  grounds.  All  of  them  are 
kept  in  order  and  repair  at  the  expense  of  the  college  in 
the  same  manner  and  to  the  same  extent  as  the  house 
occupied  by  the  president.  The  halls  and  drawing-rooms 
in  all  of  them,  except  No.  37  Quincy  Street,  occupied  by 
Professor  Langdell,  are  used,  partly  for  the  convenience 
of  the  college  and  partly  for  that  of  the  professor,  for  dif- 
ferent college  uses  and  purposes  incident  to  his  duties  as 
professor,  chairman  of  committees,  dean,  and  the  like.  In 
the  case  of  No.  11  Quincy  Street,  the  drawing-room  and 
hall  are  used  by  the  professor  for  regular  college  exer- 
cises during  the  college  year.  In  the  case  of  No.  16 
Quincy  Street,  the  professor  is  Chairman  of  the  Freshman 
Advisory  Committee  of  the  Faculty  of  Arts  and  Sciences, 
consisting  of  about  twenty  persons,  and  he  has  a  great 
number  of  interviews  in  his  drawing-room  with  students 
and  parents.  In  the  case  of  25  Quincy  Street,  the  college 
in  1892  made  additions  and  improvements  at  its  own 
expense  so  as  to  make  the  house  more  convenient  for  the 


OPINION  IN   HARVARD  COLLEGE  CASE  83 

transaction  of  college  business  and  the  entertaining  of 
guests  on  college  account.  The  additions  as  well  as  the 
drawing-room  and  hall  are  used  for  different  college  pur- 
poses incident  to  the  several  duties  of  the  occupying  pro- 
fessor. The  parts  of  the  houses  to  which  no  reference 
has  been  made  are  used  by  the  professors  and  their  fami- 
lies, and  consist  of  the  usual  living  and  housekeeping 
rooms  and  chambers.  In  the  fall  of  the  year  when  the 
salaries  of  the  professors  are  voted,  they  are  fixed  at  cer- 
tain amounts  "  and  the  use  of  the  house  $750,"  or  what- 
ever the  sum  may  be  ;  "  otherwise  the  professor  pays  no 
rent  and  has  no  other  agreement  for  his  use  and  occu- 
pation of  the  house,  but  uses  it  as  such  professor."  We 
think  that  it  was  competent  for  the  Justice  who  heard 
the  case  to  find  on  these  facts  that  the  dominant  consid- 
eration in  regard  to  the  occupation  of  the  houses  by  the 
several  professors  had  reference  to  the  performance  of 
their  duties  as  officers  and  professors,  rather  than  to  the 
private  benefit  which  they  would  receive  in  the  way  of 
homes  for  themselves  and  their  families,  and  that  he  was 
justified  in  finding  that  the  occupancy  was  for  the  pur- 
poses for  which  the  college  was  incorporated. 

This  case  is  distinguishable,  we  think,  from  Williams 
College  v.  Williamstown,  167  Mass.  611.  In  the  first  place, 
there  was  no  question  in  that  case  as  to  the  taxation  of  a 
building  used  for  a  dormitory  and  dining-hall  for  the  stu- 
dents. In  the  next  place,  the  occupation  by  the  professors 
in  this  case  clearly  lacks  the  exclusive  character  which 
it  was  held  to  have  in  that  case.  In  the  third  place,  no 
such  use  for  college  purposes  is  shown  to  have  been  made 
of  the  houses  occupied  by  the  professors  in  that  case  as 
appears  in  this  case.  In  the  fourth  place,  the  sums  fixed 
as  compensation  for  the  use  of  the  houses  in  that  case 
were  paid  and  received  as  rent,  and  were  so  treated  by 
the  Court.  In  this  case,  the  sums  fixed  for  the  use  of  the 
houses  were  allowed  as  part  of  the  compensation  for  ser- 


84  OPINION  IN   HARVARD  COLLEGE  CASE 

vices  as  professors,  thus  tending  to  show,  as  said  in  Mass. 
Gen.  Hospital  v.  Somerville,  101  Mass.  326,  that  "  the 
occupation  was  one  merely  by  reason  of  service  "  and 
that  the  value  put  upon  the  use  of  the  house  was  merely 
"  a  convenient  mode  of  adjusting  the  compensation  .  .  . 
and  not  the  income  or  fruit  of  an  estate  granted."  Lastly, 
this  case  seems  to  be  one  where  the  buildings  are  occu- 
pied "  with  the  permission  of  the  college  and  without " 
the  professors  "  having  any  estate  therein  or  paying  any 
rent  therefor,"  in  which  case  it  was  said  in  Peirce  v. 
Cambridge,  2  Cush.  611,  the  property  would  be  exempt 
from  taxation.  See  also  White  v.  Bayley,  10  C.  B.  (n.  s.) 
227. 

The  defendant  relies  on  Third  Congregational  Society 
v.  Springfield,  147  Mass.  396,  which  was  a  case  where  a 
parsonage  was  declared  to  be  unexempt.  The  Court  held 
that  religious  societies  did  not  come  within  the  clause 
that  we  have  been  considering,  but  within  the  seventh 
clause,  and  that  the  exemption  was  limited  to  houses  of 
religious  worship  only.  That  case  is  not  applicable  to 
this. 

We  think  that  the  judgment  of  the  Superior  Court 
should  be  affirmed. 

So  ordered. 


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